Santos-Walters v. Diaz et al

Filing 7

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 12/8/08. (lrc, COURT STAFF) (Filed on 12/10/2008)

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On October 21, 2008, the Court issued an Order of Dismissal with Leave to Amend and gave Plaintiff thirty days from the date of the Order to file an amended complaint providing factual and legal bases for his claims. Plaintiff was warned that a failure to timely file an amended complaint would result in dismissal without prejudice for failure to exhaust available administrative remedies. The time for Plaintiff to file his amended complaint has passed, and no amended complaint has been filed. Accordingly, IT IS HEREBY ORDERED that the complaint in the above-captioned action is DISMISSED without prejudice for failure to exhaust available administrative remedies. The Court has rendered its final decision on this matter; therefore, this Order TERMINATES Plaintiff's case. The Clerk of the Court shall terminate all pending motions and close the file. When and if Plaintiff is prepared to pursue his claims, he may file a new civil rights action. The limitations period to file a 1983 action in California is two years, but it is tolled for up to two years during a continuous period of incarceration. See Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999) (holding, pursuant to Cal. Civ. Proc. Code 340(3), that the limitations period for filing a v. DR. LINDA DIAZ, et al., Defendants. / MICHAEL JOHN SANTOS-WALTERS, Plaintiff, No. C 07-04090 SBA (PR) ORDER OF DISMISSAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1983 action in California is one year); S.B. 688 (amending Cal. Civ. Proc. Code 340(3) and adding 335.1 to establish two-year residual limitations period for personal injury actions); Cal. Civ. Proc. Code 352.1(a) (providing for an additional two years of tolling during a period of continual imprisonment). IT IS SO ORDERED. DATED: 12/8/08 SAUNDRA BROWN ARMSTRONG UNITED STATES DISTRICT JUDGE P:\PRO-SE\SBA\CR.07\Santos-Walters4090.dismiss-noAMEND.wpd 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MICHAEL JOHN SANTOS-WALTERS, Plaintiff, v. DR. DIAZ et al, Defendant. / Case Number: CV07-04090 SBA CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 8, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Michael John Santos-Walters K20095 Salinas Valley State Prison P.O. Box 1050 Soledad, CA 93960 Dated: December 8, 2008 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk P:\PRO-SE\SBA\CR.07\Santos-Walters4090.dismiss-noAMEND.wpd 3

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