Dawkins v. Woodford et al
Filing
112
ORDER Requesting Supplemental Briefing re #107 MOTION to Dismiss Plaintiff's Fourth Amended Complaint: On or before 10/5/11, Plaintiff shall file a supplemental brief. On or before 10/12/11, Defendants shall file a Reply, if any, to Plaintiff's supplemental brief. Signed by Magistrate Judge Louisa S Porter on 9/8/11.(All non-registered users served via U.S. Mail Service)(lmt) (jcj).
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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ANTHONY D. DAWKINS,
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Civil No.
Plaintiff,
v.
09cv1053- JLS (POR)
ORDER REQUESTING
SUPPLEMENTAL BRIEFING
C. BUTLER, Correctional Captain, et al.
Defendants.
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On April 29, 2011, Plaintiff Anthony Dawkins filed a Fourth Amended Complaint
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(hereinafter FAC) against Defendants Butler, Gonzalez, Stratton, Ries, Moschetti, Trujillo, Guevara,
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Mejia, Ibarra, and Duran. (Doc. 102.) On May 15, 2011, Defendants filed a Motion to Dismiss
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Plaintiff’s Fourth Amended Complaint. (Doc. 107.) Plaintiff filed a Response in Opposition to
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Defendants’ Motion to Dismiss, and Defendants filed a subsequent Reply. (Docs. 109, 110.) After
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reviewing the papers submitted by the parties, it appears Plaintiff’s Claim One for excessive use of
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force, Claim Three for retaliation, and Claim Five for due process violations may be time-barred
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unless equitable tolling applies.
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In Plaintiff’s FAC, Plaintiff represents he is entitled to equitable tolling for the time his
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previous case, Dawkins v. Woodward, No. 07-cv-1088-BEN-NLS, was pending. (FAC at 5-7.)
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Plaintiff contends Claim One began to accrue on December 14, 2003, and therefore, with the two-
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year statute of limitation plus California’s two-year tolling for imprisoned individuals on criminal
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charges, Plaintiff had until December 14, 2007 to file Claim One. Id. at 7. As to Claim Three,
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Plaintiff contends the statute of limitations began to accrue on June 16, 2004, and therefore,
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including the two-year statute of limitation plus California’s two-year tolling for imprisoned
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individuals on criminal charges, he had until June 16, 2008 to file Claim Three. Id. Plaintiff
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represents Claim Five began to accrue on February 24, 2005. Plaintiff argues, including the two-
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year statute of limitation plus California’s two-year tolling for imprisoned individuals on criminal
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charges, he had until February 24, 2009 to file Claim Five. Id. Plaintiff represents he filed his
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previous complaint on June 14, 2007, prior to the expiration of the statute of limitations for all three
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claims. Accordingly, Plaintiff argues if the court equitably tolls the time between June 14, 2007 and
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February 9, 2009 while his previous case was pending, his original complaint in this case filed on
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May 1l, 2009 would be timely. Thus, Plaintiff argues he timely filed Claims One, Three and Five.
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Id. at 6-7.
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Defendants contend Claims One, Three and Five are untimely and therefore procedurally
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barred. (Doc. 107-1 at 5-7.) Defendants represent that although Plaintiff filed his previous case on
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June 24, 2007, the court dismissed the case without prejudice on February 9, 2009. Id. at 6.
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Plaintiff then re-filed the original complaint in this case on May 11, 2009, after the statute of
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limitations had already run on Claims One, Three, and Five. Id. at 6-7. Defendants argue the
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court’s dismissal without prejudice of the previous complaint does entitle Plaintiff to equitable
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tolling “because it was plaintiff’s own inaction - failure to serve process - that caused the dismissal.”
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Id. at 6. Thus, Defendants contend Plaintiff filed this Complaint after the statute of limitations had
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already expired for Claims One, Three, and Five, and therefore, these claims are barred. Id. at 6-7.
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The Court has reviewed the docket of Plaintiff’s previous case. Plaintiff filed his complaint
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in the previous case on June 14, 2007, which the court dismissed for failure to state a claim.
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(Dawkins v. Woodward, No. 07-cv-1088-BEN-NLS, Docs. 1, 2.) Plaintiff filed a Second Amended
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Complaint, which the court also dismissed for failure to state a claim. (Doc. 8, 9.) On July 28, 2008,
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Plaintiff filed a Third Amended Complaint (Doc. 11.) On October 23, 2008, District Judge Benitez
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issued a Notice of Hearing - Dismissal for Want of Prosecution and set the hearing for December 15,
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2008. (Doc. 13.) On December 29, 2008, Judge Benitez issued another Notice of Hearing -2-
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Dismissal for Want of Prosecution and reset the hearing for February 2, 2009. (Doc. 14.) On
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January 29, 2009, after both notices but prior to the actual hearing, Plaintiff filed a letter notifying
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the court that as of December 11, 2008, Plaintiff was placed in administrative segregation. (Doc.
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16.) On February 2, 2009, Judge Benitez held a hearing for Dismissal for Want of Prosecution in
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which no parties appeared. Judge Benitez dismissed the case for want of prosecution for failure to
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serve process. (Doc. 18.)
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Accordingly, IT IS HEREBY ORDERED:
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1.
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following:
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On or before October 5, 2011, Plaintiff shall file a supplemental brief addressing the
a)
Whether his actions meet the three conditions to equitably toll a statute of
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limitations under California law. Specifically, Plaintiff shall address whether:
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(1) he diligently pursued his claim; (2) his situation is the product of forces
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beyond his control; and (3) the defendants would be prejudiced by the
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application of equitable tolling. See Hull v. Central Pathology Serv. Med.
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Clinic, 28 Cal. App. 4th, 1335 (Cal. Ct. App. 1994); Cervantes v. City of San
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Diego, 5 F.3d 1273, 1275 (9th Cir. 1993).
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b)
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2008, and (2) the hearing reset for February 2, 2009.
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2.
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On or before October 12, 2011, Defendants shall file a Reply, if any, to Plaintiff’s
supplemental brief.
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Whether Plaintiff received notice of (1) the hearing set for December 15,
IT IS SO ORDERED.
DATED: September 8, 2011
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LOUISA S PORTER
United States Magistrate Judge
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cc:
The Honorable Janis L. Sammartino
all parties
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