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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY D. DAWKINS, 12 13 14 Civil No. Plaintiff, v. 09cv1053- JLS (POR) ORDER REQUESTING SUPPLEMENTAL BRIEFING C. BUTLER, Correctional Captain, et al. Defendants. 15 16 17 On April 29, 2011, Plaintiff Anthony Dawkins filed a Fourth Amended Complaint 18 (hereinafter FAC) against Defendants Butler, Gonzalez, Stratton, Ries, Moschetti, Trujillo, Guevara, 19 Mejia, Ibarra, and Duran. (Doc. 102.) On May 15, 2011, Defendants filed a Motion to Dismiss 20 Plaintiff’s Fourth Amended Complaint. (Doc. 107.) Plaintiff filed a Response in Opposition to 21 Defendants’ Motion to Dismiss, and Defendants filed a subsequent Reply. (Docs. 109, 110.) After 22 reviewing the papers submitted by the parties, it appears Plaintiff’s Claim One for excessive use of 23 force, Claim Three for retaliation, and Claim Five for due process violations may be time-barred 24 unless equitable tolling applies. 25 In Plaintiff’s FAC, Plaintiff represents he is entitled to equitable tolling for the time his 26 previous case, Dawkins v. Woodward, No. 07-cv-1088-BEN-NLS, was pending. (FAC at 5-7.) 27 Plaintiff contends Claim One began to accrue on December 14, 2003, and therefore, with the two- 28 year statute of limitation plus California’s two-year tolling for imprisoned individuals on criminal -1- 1 charges, Plaintiff had until December 14, 2007 to file Claim One. Id. at 7. As to Claim Three, 2 Plaintiff contends the statute of limitations began to accrue on June 16, 2004, and therefore, 3 including the two-year statute of limitation plus California’s two-year tolling for imprisoned 4 individuals on criminal charges, he had until June 16, 2008 to file Claim Three. Id. Plaintiff 5 represents Claim Five began to accrue on February 24, 2005. Plaintiff argues, including the two- 6 year statute of limitation plus California’s two-year tolling for imprisoned individuals on criminal 7 charges, he had until February 24, 2009 to file Claim Five. Id. Plaintiff represents he filed his 8 previous complaint on June 14, 2007, prior to the expiration of the statute of limitations for all three 9 claims. Accordingly, Plaintiff argues if the court equitably tolls the time between June 14, 2007 and 10 February 9, 2009 while his previous case was pending, his original complaint in this case filed on 11 May 1l, 2009 would be timely. Thus, Plaintiff argues he timely filed Claims One, Three and Five. 12 Id. at 6-7. 13 Defendants contend Claims One, Three and Five are untimely and therefore procedurally 14 barred. (Doc. 107-1 at 5-7.) Defendants represent that although Plaintiff filed his previous case on 15 June 24, 2007, the court dismissed the case without prejudice on February 9, 2009. Id. at 6. 16 Plaintiff then re-filed the original complaint in this case on May 11, 2009, after the statute of 17 limitations had already run on Claims One, Three, and Five. Id. at 6-7. Defendants argue the 18 court’s dismissal without prejudice of the previous complaint does entitle Plaintiff to equitable 19 tolling “because it was plaintiff’s own inaction - failure to serve process - that caused the dismissal.” 20 Id. at 6. Thus, Defendants contend Plaintiff filed this Complaint after the statute of limitations had 21 already expired for Claims One, Three, and Five, and therefore, these claims are barred. Id. at 6-7. 22 The Court has reviewed the docket of Plaintiff’s previous case. Plaintiff filed his complaint 23 in the previous case on June 14, 2007, which the court dismissed for failure to state a claim. 24 (Dawkins v. Woodward, No. 07-cv-1088-BEN-NLS, Docs. 1, 2.) Plaintiff filed a Second Amended 25 Complaint, which the court also dismissed for failure to state a claim. (Doc. 8, 9.) On July 28, 2008, 26 Plaintiff filed a Third Amended Complaint (Doc. 11.) On October 23, 2008, District Judge Benitez 27 issued a Notice of Hearing - Dismissal for Want of Prosecution and set the hearing for December 15, 28 2008. (Doc. 13.) On December 29, 2008, Judge Benitez issued another Notice of Hearing -2- 1 Dismissal for Want of Prosecution and reset the hearing for February 2, 2009. (Doc. 14.) On 2 January 29, 2009, after both notices but prior to the actual hearing, Plaintiff filed a letter notifying 3 the court that as of December 11, 2008, Plaintiff was placed in administrative segregation. (Doc. 4 16.) On February 2, 2009, Judge Benitez held a hearing for Dismissal for Want of Prosecution in 5 which no parties appeared. Judge Benitez dismissed the case for want of prosecution for failure to 6 serve process. (Doc. 18.) 7 Accordingly, IT IS HEREBY ORDERED: 8 1. 9 following: 10 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 11 limitations under California law. Specifically, Plaintiff shall address whether: 12 (1) he diligently pursued his claim; (2) his situation is the product of forces 13 beyond his control; and (3) the defendants would be prejudiced by the 14 application of equitable tolling. See Hull v. Central Pathology Serv. Med. 15 Clinic, 28 Cal. App. 4th, 1335 (Cal. Ct. App. 1994); Cervantes v. City of San 16 Diego, 5 F.3d 1273, 1275 (9th Cir. 1993). 17 b) 18 2008, and (2) the hearing reset for February 2, 2009. 19 2. 20 On or before October 12, 2011, Defendants shall file a Reply, if any, to Plaintiff’s supplemental brief. 21 22 Whether Plaintiff received notice of (1) the hearing set for December 15, IT IS SO ORDERED. DATED: September 8, 2011 23 LOUISA S PORTER United States Magistrate Judge 24 25 26 cc: The Honorable Janis L. Sammartino all parties 27 28 -3-

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