Cruz v. Jeffreys et al
Filing
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REPORT AND RECOMMENDATION of U.S. Magistrate Judge re 47 Defendants' MOTION to Dismiss. Any written objections to this Report and Recommendation must be filed with the Court and a copy served on all parties on or before 10/31/2017. Signed by Magistrate Judge Peter C. Lewis on 10/13/2017.(All non-registered users served via U.S. Mail Service)(mpl)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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Guillermo Trujillo Cruz,
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Plaintiff,
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Case No.
REPORT AND
RECOMMENDATION OF U.S.
MAGISTRATE JUDGE RE:
v.
Jeffreys et al.,
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15cv2826 JLS (PCL)
DEFENDANTS’ MOTION TO
DISMISS
Defendants.
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Plaintiff Guillermo Trujillo Cruz, a state prisoner proceeding pro se, filed a
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First Amended Complaint under the Civil Rights Act 42 U.S.C. §1983, alleging that
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three correctional officers, Defendants Jeffries, Rios, and Ramos, retaliated against
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him in 2010 and 2011 by reporting him to a mental health professional and setting him
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up to be assaulted. (Doc. 46.) Defendants have filed a motion to dismiss Plaintiff’s
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First Amended Complaint, arguing that Plaintiff’s claims are barred by the statute of
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limitations and that Plaintiff has failed to exhaust his administrative remedies prior to
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filing suit. (Doc. 47.) For the following reasons, the Court recommends granting in
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part Defendant’s motion and dismissing the First Amended Complaint.
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I. BACKGROUND
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Serving a twenty-year sentence, Plaintiff is currently incarcerated at Pelican
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Bay State Prison. (Doc. 46, at 1.) At the times relevant to this action, Plaintiff was
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incarcerated at R.J. Donovan Correctional Facility (RJD) in San Diego, California.
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(Id.) Defendants Jeffries, Rios, and Ramos are correctional officers stationed at RJD.
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(Id.)
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A. Allegations in Plaintiff’s Complaint
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In his original Complaint, Plaintiff alleged that in July 2010, he filed an inmate
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grievance alleging that certain unnamed male and female officers had failed to log into
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the E.R.M.S. System. (Doc. 1, at 3.) Plaintiff alleges that Defendants Jeffries and Rios
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reported him to the Mental Health Services Delivery System because he was hearing
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things and filing false 602 grievances. (Doc. 1, at 3.)
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Plaintiff next alleges that on July 13, 2010, he was targeted for assault while on
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the prison recreation yard. (Doc. 1, at 3.) Plaintiff alleges that he “was unlawfully
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subjected to be targeted [in] an assault in retaliation for filing 602 grievances . . .”
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(Doc. 1, at 3.) Plaintiff alleges he was hit and punched in the face, causing bruising to
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his eye socket, a gash on his cheek bone, and bruising to his rib cage. (Id.) Plaintiff
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attaches to the Complaint his Rules Violation Report, which documents the incident.
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(Doc. 1, at 7.) The Rules Violation Report shows that Plaintiff was convicted of
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fighting with two other inmates. (Doc. 1, at 8.) The Report includes Plaintiff’s
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statement that he was not involved in the fight but was over by the handball court,
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minding his own business. (Id.)
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Plaintiff claims that he filed a 602 grievance form with the prison regarding the
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July 13, 2010 incident on the prison yard in which Plaintiff was convicted of fighting
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with two other inmates. (Doc. 1, at 4, 17.) Plaintiff also claims to have submitted a
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602 form purportedly filed on July 5, 2010 in which Plaintiff states that Defendant
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Jeffries called him a “punk” for filing 602 forms and claims that Jeffries “tried to get
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him to fight with other inmates.” (Doc. 36, at 11.) Plaintiff also purportedly described
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in writing that Defendant Rios “instigate[d]” him to start a fight with other inmates on
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July 1, 2010 for “reporting employee sexual misconduct on correctional females.”
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(Doc. 36, at 12.) Plaintiff states that prison officials did not respond to his grievance
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forms. (Doc. 1, at 4.) Plaintiff also states that on March 26, 2011 he filed a
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government claim form to obtain compensation damages for injuries and the pain he
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suffered. (Doc. 1, at 3.)
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Plaintiff’s complaint, containing claims against Defendants Rios, Jeffries, and
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Ramos for retaliation under the First Amendment, failure to protect under the Eighth
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Amendment, and violation of due process under the Fourteenth Amendment, was filed
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on December 15, 2015. (Doc. 1.) Plaintiff signed his complaint on December 9, 2015,
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but the envelope in which it was mailed was signed by a correctional officer on
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December 8, 2015 and shows a postage date of December 10, 2015. (Doc. 1, at 6, 19,
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20.)
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B. Allegations in Plaintiff’s First Amended Complaint
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In his First Amended Complaint, Plaintiff initially alleges that Defendants
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retaliated against him on July 9, 2010 and through July 13, 2010. (Doc. 46, at 2.)
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Plaintiff then alleges that in July 2011, Defendants Jeffries and Rios stopped by his
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cell, swore at him, and claims that Plaintiff had made false allegations against them in
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prison grievances. (Doc. 46, at 3.) Plaintiff alleges that Jeffries and Rios then walked
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down the tier questioning other inmates, ordered the inmates to assault him, and
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offered a reward for assaulting him. (Id.)
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Plaintiff alleges that Jeffries referred Plaintiff to mental health services “to
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cover up his illegal verbal threats towards Plaintiff.” (Id.) Plaintiff alleges that this
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occurred “later in the week” but also alleges that it occurred on July 8, 2010. (Id.)
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Plaintiff alleges that “two days later,” “on July 13, 2011,” Plaintiff was assaulted on
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Jeffries, Rios and Ramos’s orders. (Id.) Plaintiff alleges he suffered a black eye, a
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gash to the right cheek, and bruises to his rib cage. (Id. at 4.) Plaintiff has increased
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his demand for damages to $50,000 per Defendant, but he continues to claim $60,000
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in punitive damages. (Id. at 5.)
Plaintiff alleges in his First Amended Complaint that he filed a prison appeal on
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July 9, 2010, but never received a response from the appeals coordinator at RJD.
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(Doc. 46, at 4.) Plaintiff alleges that it took him five years to finally finish exhausting
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his appeal, completing the process at the third level of review on June 6, 2017, more
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than a year after filing his original Complaint. (Id.) Plaintiff has attached an appeal
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dated May 1, 2016, in which he alleges that Defendants Jeffries and Rios set him up to
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be attacked. (Id. at 13-14.) This appeal was screened out as untimely. (Id. at 18.)
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Plaintiff then appealed the screened-out appeal on June 29, 2016. (Id. at 9.) This
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appeal was accepted and denied at the third level of review on June 6, 2017. (Id. at 7.)
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II. STANDARD OF REVIEW
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A motion to dismiss a complaint under Federal Rules of Civil Procedure
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12(b)(6) tests the legal sufficiency of plaintiff’s claims. Navarro v. Block, 250 F.3d
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729, 732 (9th Cir. 2001). The Court must assume the truth of the facts presented in
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Plaintiff’s complaint and construe inferences from them in the light most favorable to
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the nonmoving party when reviewing a motion to dismiss under Rule 12(b)(6).
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Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a court need not accept as true
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allegations that contradict matters properly subject to judicial notice or by exhibit. See
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Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 1987). “Nor is the court
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required to accept as true allegations that are merely conclusory, unwarranted
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deductions of fact, or unreasonable inferences.” Id.
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A motion to dismiss may be based on the running of the statute of limitations
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period if the running of the statute is apparent on the face of the complaint. See Jablon
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v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). Section 1983 claims are
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governed by the forum state’s statute of limitations for personal injury actions, and the
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days start to accrue when the plaintiff knows or should know of the injury that is the
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basis of the claim. Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009). The
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applicable statute of limitations under California law is two years. Cal. Civ. Proc.
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Code section 335.1; see Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004).
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Additionally, California law tolls the statute of limitations for up to two years based
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on the disability of imprisonment for inmates serving less than life terms. Cal. Civ.
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Proc. Code section 352.1; Jones, 393 F.3d at 927. The effective statute of limitations
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for an action by a prisoner under 42 U.S.C. section 1983 is therefore up to four years
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notwithstanding the fact that “[t]he applicable statute of limitations is tolled when a
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prisoner completes the mandatory exhaustion process.” Brown v. Valoff, 422 F.3d
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926, 943 (9th Cir. 2005).
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To ensure further fairness, California law also provides for equitable tolling to
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extend the statute of limitations under certain circumstances. Jones, 393 F.3d at 928.
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“[T]hree conditions must be met to toll the statute of limitations: (1) defendant must
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have had a timely notice of the claim; (2) defendant must not be prejudiced by being
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required to defend the otherwise barred claim; and (3) plaintiff’s conduct must have
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been reasonable and in good faith.” Bacon v. City of Los Angeles, 843 F.2d 372, 374
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(9th Cir. 1988). The effect of equitable tolling is that the limitations period stops
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running during a tolling event and begins to run again only when the tolling event has
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concluded. See Lantzy v. Centex Homes, 31 Cal. 4th 363, 370 (2003). The tolled
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interval is tacked onto the end of the limitations period, thus extending the deadline
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for suit by the entire length of time during which the tolling event previously
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occurred. See id. at 370-71. Application of the equitable tolling doctrine requires a
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balancing of the injustice to the plaintiff occasioned by the bar of his claims against
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the effect upon the important public interest or policy expressed by the limitations
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statute. See id. at 371. A federal court must determine on a motion to dismiss
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“whether the complaint liberally construed in light of our ‘notice pleading’ system,
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adequately alleges facts showing the potential applicability of the equitable tolling
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doctrine.” Cervantes v. City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993).
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However, the question of whether the doctrine of equitable tolling applies normally
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requires reference to matter outside the pleadings and is not generally amenable to
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resolution on a Rule 12(b)(6) motion to dismiss. Id. at 1276. Only in instances where
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there are facts evident from the face of the complaint that support the conclusion that
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the plaintiff could not prevail, as a matter of law, on the equitable tolling issue will a
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court rule on the statute of limitations defense on a 12(b)(6) motion. Id.
Moreover, the Prison Litigation Reform Act (“PLRA”) requires prisoners to
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exhaust all available administrative remedies before filing a § 1983 action in federal
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court. See 42 U.S.C. § 1997e(a). “The obligation to exhaust ‘available’ remedies
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persists as long as some remedy remains ‘available.’ Once that is no longer the case,
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then there are no ‘remedies ... available,’ and the prisoner need not further pursue the
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grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (quoting Booth v.
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Churner, 532 U.S. 731, 739-41 (2001)). The Ninth Circuit has held that “defendants
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have the burden of raising and proving the absence of exhaustion.” Wyatt v. Terhune,
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315 F.3d 1108, 1119 (9th Cir. 2003) (overruled on other grounds). This burden
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requires defendants to demonstrate that the inmate has failed to pursue some avenue of
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“available” administrative relief. Brown, 422 F.3d at 936-37. Because “failure to
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exhaust is an affirmative defense under the PLRA, and ... inmates are not required to
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specially plead or demonstrate exhaustion in their complaints,” the defendant in a
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typical PLRA case will have to present probative evidence that the prisoner has failed
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to exhaust available administrative remedies under § 1997e(a). If in the rare case a
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prisoner’s failure to exhaust is clear from the face of the complaint, a “defendant may
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successfully move to dismiss under Rule 12(b)(6) for failure to state a claim.” Albino
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v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014).
Finally, if a complaint is found to fail to state a claim or is statutorily barred, the
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court should grant leave to amend unless it determines that the pleading could not
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possibly be cured by the allegations of other facts. See Doe v. United States, 58 F.3d
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494, 497 (9th Cir. 1995).
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III. DISCUSSION
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Defendants argue in their motion to dismiss that Plaintiff’s claims are barred by
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the statute of limitations. (Doc. 47, at 2.) Defendants also argue that Plaintiff failed to
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plead facts that would equitably toll the statute of limitations. (Id.) Furthermore,
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Defendants argue that Plaintiff’s case is premature because Plaintiff did not finally
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exhaust his remedies until 2016 or 2017, after he filed suit. (Id. at 9.)
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A. Statute of limitations
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Defendants argue that Plaintiff’s section 1983 claims against them should be
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dismissed for being time-barred by section 335.1 of California’s Code of Civil
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Procedure, which sets a two-year statute of limitations period for personal injury
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claims. (Doc. 47.) California law tolls the statute of limitations for up to two years
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based on the disability of imprisonment for inmates serving terms less than life terms.
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Cal. Civ. Proc. Code § 352.1; Jones, 393 F.3d at 927. As Plaintiff, who is not serving
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a life term, filed his complaint on December 15, 2015 on actions that occurred in July
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of 2010 and July of 2011, Plaintiff’s claims, which should have been filed by July
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2015 at the latest, are therefore time barred, unless another type of tolling applies.
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On Defendant’s motion to dismiss, however, the Court cannot rule on the
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factual question of the applicability of tolling at this time because it is not clear from
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the face of Plaintiff’s First Amended Complaint that Plaintiff could not prevail, as a
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matter of law, on the statute of limitations issue. Plaintiff has presented conflicting
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evidence as to the reasons for the delay in exhausting his remedies through the third
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level of administrative review at RJD prison. Plaintiff has alleged that he filed a prison
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appeal on July 9, 2010 but never received a response from the appeals coordinator at
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RJD. (Doc. 46, at 4.) Plaintiff attaches an appeal dated May 1, 2016, in which he
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alleges that Defendant Jeffries and Rios set him up to be attacked. (Doc. 46, at 13-14.)
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This appeal shows that it was screened out as untimely. (Doc. 46, at 18.) Plaintiff then
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states that he allegedly appealed this screened-out appeal on June 29, 2016. (Doc. 46,
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at 9.) This appeal shows that it was finally accepted at the third level of review but it
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was denied on June 6, 2017. (Doc. 46, at 7.) The third level appeal decision notes that
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it was “appellant’s position that [his appeal] was cancelled in error.” (Doc. 46, at 8.)
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But the decision states that no relief can be granted to appellant after a review of the
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facts presented. (Doc. 46, at 8.)
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Under this factual scenario, the Court finds that it is not clear on the face of
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Plaintiff’s First Amended Complaint the extent to which the statute of limitations
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period should be tolled while Plaintiff exhausted his administrative remedies and how
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much equitable tolling should be afforded to Plaintiff based on the level of effort he
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made at the administrative level of review to resolve his claims. Thus, the Court
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recommends denying Defendants’ motion to dismiss Plaintiff’s amended complaint on
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statute of limitations grounds.
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B. Timing of Exhaustion
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A prison inmate must exhaust his administrative remedies before filing a
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lawsuit. 42 U.S.C. 1997e(a); McKinney v. Carey, 311 F3.d 1198, 1199 (9th Cir. 2002).
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In McKinney, the Ninth Circuit held “that § 1997e(a) requires exhaustion before the
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filing of a complaint and that a prisoner does not comply with this requirement by
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exhausting available remedies during the course of litigation.” Id. at 1199. Similarly,
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in Vaden v. Summerhill, 449 F.3d 1047 (9th Cir. 2006), the Ninth Circuit held that a
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prisoner “may initiate litigation in federal court only after the administrative process
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ends and leaves his grievances unredressed.” Id. at 1151. Moreover, Defendants may
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successfully raise the affirmative defense of failure to timely exhaust administrative
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remedies on a motion to dismiss if Plaintiff’s failure to exhaust is clear on the face of
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the complaint. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014).
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In this case, Plaintiff has alleged that it took him five years to finally finish
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exhausting his administrative remedies. (Doc. 46, at 7.) Plaintiff has also provided
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proof in his First Amended Complaint that he finally exhausted his administrative
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remedies on his claims on June 6, 2017, after he filed this lawsuit. (Doc. 46, at 4.) The
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third level appeal decision states that Plaintiff’s issues “were appropriately reviewed
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and evaluated by administrative staff.” (Doc. 46, at 8.) The third level review also
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notes that Plaintiff was “unable to explain the delay in requesting the outcome of an
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appeal which the appellant contends was submitted in the year 2011.” (Doc. 46, at 8.)
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For these reasons, the appeal states that relief can not be afforded to Plaintiff at the
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third level of review. (Doc. 46, at 8.)
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Based on this evidence included in Plaintiff’s First Amended Complaint, it is
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clear to the Court that Plaintiff did not file the director’s level of appeal until after he
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filed this lawsuit. Thus, Plaintiff’s filing of this action before the director’s level
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appeal was filed and denied was improper. See King v. CDC, 2007 WL 2265106, at
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*1 (E.D. Cal. August 6, 2007). Accordingly, it is recommended that Defendants’
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motion to dismiss be granted on exhaustion grounds.
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IV. CONCLUSION
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As it is clear from the face of Plaintiff’s First Amended Complaint that he did
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not exhaust his administrative remedies until after he filed this action, Plaintiff’s
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lawsuit should be dismissed without leave to amend because there is no way for
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Plaintiff to cure the timing issue with the instant lawsuit. Nevertheless, his case should
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be dismissed without prejudice as to any future lawsuit that Plaintiff may file in the
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future.
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Any written objections to this Report and Recommendation must be filed with
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the Court and a copy served on all parties on or before October 31, 2017. The
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document should be captioned “Objections to Report and Recommendation.” The
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parties are advised that failure to file objections within the specified time may waive
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the right to raise those objections on appeal of this Court’s order. Martinez v. Ylst,
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951 F.2d 1153, 1156 (9th Cir. 1991).
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DATED: October 13, 2017
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Peter C. Lewis
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United States District Court
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