Miller v. Penish
Filing
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ORDER Granting 2 Motion for Leave to Proceed in forma pauperis; and Dismissing Civil Action For Failure to State a Claim. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exc eeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). The Court directs the Clerk of Court to close the file. Signed by Judge Anthony J. Battaglia on 3/22/17. (All non-registered users served via U.S. Mail Service)(dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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RUSSELL MILLER,
Booking #16113441,
Case No.: 3:16-cv-3078-AJB-MDD
ORDER:
Plaintiff,
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vs.
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1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]
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DENNIS M. PENISH,
AND
Defendants.
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3) DISMISSING CIVIL ACTION
FOR FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)
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Russell H. Miller (“Plaintiff”), currently incarcerated at the Sierra Conservation
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Camp in Jamestown, California, and proceeding pro se, has filed a civil rights complaint
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pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has also filed a Motion to Proceed In
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Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
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3:16-cv-3078-AJB-MDD
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I.
Motion to Proceed IFP
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All parties instituting any civil action, suit or proceeding in a district court of the
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United States, except an application for writ of habeas corpus, must pay a filing fee of
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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
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Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
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1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.
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See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.
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2002).
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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the
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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
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trust account statement, the Court assesses an initial payment of 20% of (a) the average
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monthly deposits in the account for the past six months, or (b) the average monthly
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balance in the account for the past six months, whichever is greater, unless the prisoner
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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having
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custody of the prisoner then collects subsequent payments, assessed at 20% of the
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preceding month’s income, in any month in which his account exceeds $10, and forwards
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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
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In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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3:16-cv-3078-AJB-MDD
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In support of his IFP Motion, Plaintiff has submitted a prison certificate. See ECF
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No. 2 at 4; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119.
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These statements show Plaintiff has had no monthly deposits to his account, has carried
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no balance over the six month period preceding the filing of his Complaint, and that his
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current available balance is zero. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no
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event shall a prisoner be prohibited from bringing a civil action or appealing a civil action
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or criminal judgment for the reason that the prisoner has no assets and no means by
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which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at
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850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of
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a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds
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available to him when payment is ordered.”).
Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),
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declines to “exact” any initial filing fee because his trust account statement shows he “has
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no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary for the California
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Department of Corrections and Rehabilitation to instead collect the entire $350 balance of
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the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court
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pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
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II.
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
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A.
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Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
Standard of Review
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answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of
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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
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the targets of frivolous or malicious suits need not bear the expense of responding.’”
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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted.)
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“The standard for determining whether a plaintiff has failed to state a claim upon
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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
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applied in the context of failure to state a claim under Federal Rule of Civil Procedure
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12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
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Detailed factual allegations are not required, but “[t]hreadbare recitals of the
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elements of a cause of action, supported by mere conclusory statements, do not suffice.”
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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for
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relief [is] ... a context-specific task that requires the reviewing court to draw on its
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judicial experience and common sense.” Id. The “mere possibility of misconduct” or
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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting
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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969
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(9th Cir. 2009).
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B.
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“Section 1983 creates a private right of action against individuals who, acting
42 U.S.C. § 1983
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under color of state law, violate federal constitutional or statutory rights.” Devereaux v.
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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
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substantive rights, but merely provides a method for vindicating federal rights elsewhere
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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks
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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)
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deprivation of a right secured by the Constitution and laws of the United States, and (2)
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that the deprivation was committed by a person acting under color of state law.” Tsao v.
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Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
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3:16-cv-3078-AJB-MDD
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C.
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Plaintiff’s claims arose when he was engaged in criminal proceedings in 2000.
Statute of Limitations
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(See Compl. at 1.) “A claim may be dismissed [for failing to state a claim] on the
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ground that it is barred by the applicable statute of limitations only when ‘the running of
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the statute is apparent on the face of the complaint.’” Von Saher v. Norton Simon
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Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase
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Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). “‘A complaint cannot be dismissed
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unless it appears beyond doubt that the plaintiff can prove no set of facts that would
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establish the timeliness of the claim.’” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d
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1204, 1206 (9th Cir. 1995)); see also Cervantes v. City of San Diego, 5 F.3d 1273, 1276-
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77 (9th Cir. 1993) (where the running of the statute of limitations is apparent on the face
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of a complaint, dismissal for failure to state a claim is proper, so long as Plaintiff is
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provided an opportunity to amend in order to allege facts which, if proved, might support
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tolling); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216
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F.3d 764, 788 (9th Cir. 2000) (court may raise the defense of statute of limitations sua
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sponte).
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Because section 1983 contains no specific statute of limitation, federal courts apply
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the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393
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F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004);
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Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s statute of
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limitations was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the
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limitations period was extended to two years. Id. (citing CAL. CIV. PROC. CODE § 335.1).
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The law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394
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(2007) (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927
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(noting that in actions where the federal court borrows the state statute of limitation, the
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federal court also borrows all applicable provisions for tolling the limitations period
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found in state law).
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3:16-cv-3078-AJB-MDD
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Under California law, the statute of limitations for prisoners serving less than a life
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sentence is tolled for two years. CAL. CIV. PROC. CODE § 352.1(a); Johnson v. California,
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207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 (2005).
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Accordingly, the effective statute of limitations for most California prisoners is three
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years for claims accruing before January 1, 2003 (one year limitations period plus two
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year statutory tolling), and four years for claims accruing thereafter (two year limitations
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period plus two years statutory tolling).
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Unlike the length of the limitations period, however, “the accrual date of a § 1983
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cause of action is a question of federal law that is not resolved by reference to state law.”
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Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a
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§ 1983 cause of action accrues). “Under the traditional rule of accrual ... the tort cause of
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action accrues, and the statute of limitation begins to run, when the wrongful act or
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omission results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder
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federal law, a claim accrues when the plaintiff knows or has reason to know of the injury
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which is the basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174
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F.3d 987, 991 (9th Cir. 1999).
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In this case, the “wrongful act” which is alleged to have caused Plaintiff harm
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occurred nearly sixteen years before Plaintiff filed his Complaint in this action, and far
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outside California’s statute of limitations, even including all presumed periods of tolling
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provided by statute, or pending the exhaustion of any administrative remedies. Wallace,
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591 U.S. at 391; see also Maldonado, 370 F.3d at 955; CAL. CODE CIV. PROC. § 335.1
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(tolling statute of limitations “for a maximum of 2 years” during a prisoner’s
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incarceration); Jones, 393 F.3d at 927; Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005)
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(finding that “the applicable statute of limitations must be tolled while a prisoner
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completes the mandatory exhaustion process” required by 42 U.S.C. § 1997e(a)).
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Specifically, Plaintiff claims his constitutional rights were violated during his
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criminal proceedings in 2000. (See Compl. at 1, 3.) Therefore, he had “reason to know”
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the basis of his cause of action in 2000, but did not file this case until December 16,
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2016—well after the limitations period elapsed. See Maldonado, 370 F.3d at 955.
Finally, Plaintiff’s claims could be considered timely if, in his Complaint, he
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alleges facts sufficient to show the limitations period may be equitably tolled. See
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Cervantes, 5 F.3d at 1276-77. Generally, federal courts also apply the forum state’s law
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regarding equitable tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d
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372, 374 (9th Cir.1988). Under California law, however, Plaintiff must meet three
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conditions to equitably toll the statute of limitations: (1) he must have diligently pursued
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his claim; (2) his situation must be the product of forces beyond his control; and (3)
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Defendants must not be prejudiced by the application of equitable tolling. See Hull v.
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Central Pathology Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994);
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Addison v. State of California, 21 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916.
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As currently pleaded, however, the Court finds Plaintiff has failed to plead any
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facts which, if proved, would support any plausible claim for equitable tolling. See
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Cervantes, 5 F.3d at 1277; Iqbal, 556 U.S. at 679. Accordingly, the Court finds Plaintiff’s
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claims are barred by the statute of limitations, and his entire Complaint must be
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dismissed for failing to state a claim upon which section 1983 relief may be granted. See
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28 U.S.C. § 1915(e)(2)(B)(ii); Barren, 152 F.3d at 1194.
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D.
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Plaintiff alleges that his civil rights have been violated because Defendants
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“engaged in sentence advocacy” which caused his criminal sentence to be “enhanced.”
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(Compl. at 3.) Plaintiff claims that this was a “breach of plea agreement.” (Id.) Plaintiff
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was subject to criminal proceedings in San Diego Superior Court in 2000 and claims the
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Deputy District Attorney prosecuting him introduced “new evidence” that “could not be
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magically erased.” (Id. at 11.) Plaintiff seeks injunctive relief in the form of this Court
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issuing an “order for resentencing.” (Id. at 8.)
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Criminal Proceedings
However, “[s]uits challenging the validity of the prisoner’s continued
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incarceration lie within ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper
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remedy for a state prisoner who is making a constitutional challenge to the conditions of
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his prison life, but not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d
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850, 856 (9th Cir. 2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973)
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(holding that a writ of habeas corpus is “explicitly and historically designed” to provide a
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state prisoner with the “exclusive” means to “attack the validity of his confinement” in
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federal court).
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E.
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Finally, to the extent Plaintiff seeks damages against Dennis Penish for being the
Prosecutorial Immunity
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prosecutor in his criminal proceedings, his claims are legally frivolous, because as a
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prosecutor, Dennis Penish is entitled to absolute prosecutorial immunity. Ashelman v.
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Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (“Where a prosecutor acts as an advocate ‘in
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initiating a prosecution and in presenting the state’s case,’ absolute immunity applies.”
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(quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976)); see also Lacey v. Maricopa
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Cnty., 693 F.3d 896, 912 (9th Cir. 2012) (“Prosecutors performing their official
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prosecutorial functions are entitled to absolute immunity against constitutional torts.”).
Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state a
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claim upon which § 1983 relief may be granted, and that it therefore must be
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DISMISSED pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at
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1126-27; Wilhelm, 680 F.3d at 1121.
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III.
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Leave to Amend
Finally, while the Court would typically grant Plaintiff leave to amend in light of
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his pro se status, it concludes that doing so under the circumstances presented by
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Plaintiff’s pleadings would be futile. See Lopez, 203 F.3d at 1127; Schmier v. U.S. Court
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of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing
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“[f]utility of amendment” as a proper basis for dismissal without leave to amend).
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IV.
Conclusion and Order
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For all the reasons explained the Court:
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1.
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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
(ECF No. 3).
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DIRECTS the Secretary of the CDCR, or his designee, to collect from
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Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing
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monthly payments from the account in an amount equal to twenty percent (20%) of the
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preceding month’s income and forwarding those payments to the Clerk of the Court each
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time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL
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PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
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ASSIGNED TO THIS ACTION
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DIRECTS the Clerk of the Court to serve a copy of this Order on Scott
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Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box
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942883, Sacramento, California, 94283-0001.
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4.
DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim
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upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and
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§ 1915A(b)(1), without leave to amend as futile.
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5.
CERTIFIES that an IFP appeal from this Order would be frivolous and
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therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See
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Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548,
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550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if
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appeal would not be frivolous); and
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6.
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IT IS SO ORDERED.
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DIRECTS the Clerk of Court to close the file.
Dated: March 22, 2017
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