Fkadu v. Mize et al
Filing
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ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The Court: 1. GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2); and 2. DISMISSES Plaintiff's Complaint for failing to state a claim upon which relief may be granted and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and without leave to amend. 3. CERTIFIES that an IFP appeal from this Order would also be frivolous and therefore, could not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous). Signed by Judge William Q. Hayes on 8/3/2017. (All non-registered users served via U.S. Mail Service)(acc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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BERIHU H. FKADU,
Patient #063295-0,
ORDER:
Plaintiff,
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vs.
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Case No.: 3:17-cv-01184-WQH-PCL
1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF. No. 2]
RANDY MIZE, et al.
Defendants.
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AND
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2) DISMISSING CIVIL ACTION
FOR FAILING TO STATE A CLAIM
UPON WHICH RELIEF CAN BE
GRANTED AND AS FRIVOLOUS
PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)
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Berihu Fkadu (“Plaintiff”), proceeding pro se, and civilly detained at Atascadero
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State Hospital (“ASH”) in Atascadero, California, has filed this civil action pursuant to 42
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U.S.C. § 1983 (ECF No. 1).
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Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead
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he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)
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(ECF No. 2).
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3:17-cv-01184-WQH-PCL
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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).
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However, “[u]nlike other indigent litigants, prisoners proceeding IFP must pay the
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full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison
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Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined
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by the PLRA, a “prisoner” is “any person incarcerated or detained in any facility who is
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accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of
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criminal law or the terms and conditions of parole, probation, pretrial release, or
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diversionary program.” 28 U.S.C. § 1915(h).
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A “civil detainee” on the other hand, like Plaintiff, is not a “prisoner” within the
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meaning of the PLRA. Andrews v. King, 398 F.3d 1113, 1122 (9th Cir 2005); Agyeman,
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296 F.3d at 886 (holding that INS detainee not also facing criminal charges is not a
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“prisoner” under § 1915); see also Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000)
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(person confined under California’s Sexually Violent Predator Law, while “a ‘prisoner’
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within the meaning of the PLRA when he served time for his conviction, . . . ceased being
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a ‘prisoner’ when he was released from the custody of the Department of Corrections.”);
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Mullen v. Surtshin, 590 F. Supp. 2d 1233, 1240 (N.D. Cal. 2008) (holding plaintiff
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“adjudicated NGI [not guilty by reason of insanity] and committed to [Napa State Hospital]
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as a result of that adjudication” was “not a prisoner as defined by the PLRA.”).
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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.
June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed
IFP. Id.
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Thus, because Plaintiff is a civilly committed patient at ASH, and not a “prisoner”
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as defined by 28 U.S.C. § 1915(h) when he filed this action, the filing fee provisions of 28
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U.S.C. § 1915(b) do not apply. Andrews, 398 F.3d at 1122. Therefore, the Court has
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reviewed Plaintiff’s affidavit of assets, just as it would for any other non-prisoner litigant
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seeking IFP status, and finds it is sufficient to show that he is unable to pay the fees or post
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securities required to maintain this action. See S.D. CAL. CIVLR 3.2(d). Accordingly, the
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Court GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF
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No. 2).
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II.
Screening Pursuant to 28 U.S.C. § 1915(e)(2)
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A.
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A complaint filed by any person proceeding in forma pauperis is subject to sua
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sponte dismissal, however, if it is “frivolous, malicious, fail[s] to state a claim upon which
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relief may be granted, or seek[s] monetary relief from a defendant immune from such
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relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)
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(per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to
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prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection
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1915(e) not only permits, but requires a district court to dismiss an in forma pauperis
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complaint that fails to state a claim.”).
Standard of Review
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All complaints must contain “a short and plain statement of the claim showing that
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the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a
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complaint states a plausible claim for relief [is] . . . a context-specific task that requires the
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reviewing court to draw on its judicial experience and common sense.” Id. The “mere
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possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also
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Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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“When there are well-pleaded factual allegations, a court should assume their
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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
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(“[W]hen determining whether a complaint states a claim, a court must accept as true all
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allegations of material fact and must construe those facts in the light most favorable to the
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plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).
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However, while the court “ha[s] an obligation where the petitioner is pro se,
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particularly in civil rights cases, to construe the pleadings liberally and to afford the
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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply
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essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the
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University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff’s Complaint
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B.
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The Complaint appears to allege that since “early 1995” various public defenders,
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alternate public defenders, private criminal counsel and appellate counsel have conspired
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with prosecutors and judges to have him convicted of crimes. (ECF No. 1 at 2-7).
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C.
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Plaintiff’s claims arose when he was engaged in criminal proceedings in 1995. (ECF
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No. 1 at 1, 5). “A claim may be dismissed [for failing to state a claim] on the ground that
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it is barred by the applicable statute of limitations only when ‘the running of the statute is
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apparent on the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at
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Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank,
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465 F.3d 992, 997 (9th Cir. 2006)). “‘A complaint cannot be dismissed unless it appears
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beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness
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of the claim.’” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir.
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1995)); see also Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993)
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(where the running of the statute of limitations is apparent on the face of a complaint,
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dismissal for failure to state a claim is proper, so long as Plaintiff is provided an opportunity
Statute of Limitations
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to amend in order to allege facts which, if proved, might support tolling); see also Tahoe-
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Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir.
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2000) (court may raise the defense of statute of limitations sua sponte); Hughes v. Lott,
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350 F.3d 1157, 1163 (11th Cir. 2003) (upholding sua sponte dismissal under 28 U.S.C. §
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1915(e)(2)(B) of prisoner’s time-barred complaint).
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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 limitations
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period was extended to two years. Id. (citing CAL. CIV. PROC. CODE § 335.1). The law of
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the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 (2007) (citing
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Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927 (noting that in
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actions where the federal court borrows the state statute of limitation, the federal court also
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borrows all applicable provisions for tolling the limitations period found in state law).
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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 years
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for claims accruing before January 1, 2003 (one year limitations period plus two year
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statutory tolling), and four years for claims accruing thereafter (two year limitations period
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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 § 1983
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cause of action accrues). “Under the traditional rule of accrual ... the tort cause of action
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accrues, and the statute of limitation begins to run, when the wrongful act or omission
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results in damages.” Wallace, 549 U.S. at 391. “Under federal law, a claim accrues when
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the plaintiff knows or has reason to know of the injury which is the basis of the action.”
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Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174 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 more than twenty 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 incarceration);
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Jones, 393 F.3d at 927; Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (finding that
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“the applicable statute of limitations must be tolled while a prisoner completes the
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mandatory exhaustion process” required by 42 U.S.C. § 1997e(a)).
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Finally, Plaintiff’s claims could be considered timely if, in his Complaint, he alleges
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facts sufficient to show the limitations period may be equitably tolled. See Cervantes, 5
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F.3d at 1276-77. Generally, federal courts also apply the forum state’s law regarding
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equitable tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 372, 374
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(9th Cir.1988). Under California law, however, Plaintiff must meet three conditions to
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equitably toll the statute of limitations: (1) he must have diligently pursued his claim; (2)
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his situation must be the product of forces beyond his control; and (3) Defendants must not
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be prejudiced by the application of equitable tolling. See Hull v. Central Pathology Serv.
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Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State of
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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 facts
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which, if proved, would support any plausible claim for equitable tolling. See Cervantes, 5
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F.3d at 1277; Iqbal, 556 U.S. at 679.
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Plaintiff pursued these identical claims against some of the named Defendants in 2016. See
In addition, the Court takes judicial notice that
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3:17-cv-01184-WQH-PCL
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Fkadu v. Mize, et al., S.D. Cal. Civil Case No. 3:16-cv-01120-CAB-RBB.2
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Accordingly, the Court finds Plaintiff’s claims are barred by the statute of
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limitations, and his entire Complaint must be dismissed for failing to state a claim upon
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which section 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Barren, 152
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F.3d at 1194.
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D.
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The Court also finds Plaintiff’s Complaint is frivolous. A pleading is “factual[ly]
Frivolous claims
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frivolous[]” if “the facts alleged rise to the level of the irrational or the wholly incredible,
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whether or not there are judicially noticeable facts available to contradict them.” Denton
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v. Hernandez, 504 U.S. 25, 25-26 (1992). While most of Plaintiff’s Complaint contains
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disjointed allegations, and are difficult to discern, he alleges that the Defendants have
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been “faking & ganging mindlessly & polluting me & persecuting me & my loved one &
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or my supporters.” (ECF No. 1 at 5). He also alleges that Defendant Price “bizarrely
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ganged with Ethiopians (traitors & secretive criminals for future dictators, etc.).” (Id. at
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6).
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“[A] complaint, containing as it does both factual allegations and legal
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conclusions, is frivolous where it lacks an arguable basis either in law or in fact. . . .
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[The] term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable
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legal conclusion, but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S.
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319, 325 (1989). When determining whether a complaint is frivolous, the court need not
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accept the allegations as true, but must “pierce the veil of the complaint’s factual
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allegations,” Id. at 327, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or]
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‘delusional,’” Denton, 504 U.S. at 33 (quoting Neitzke, 490 U.S. at 328).
Here, the Court finds that Plaintiff’s claims “rise to the level of the irrational or the
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The Court takes judicial notice that Plaintiff has filed fifteen actions pursuant to 42 U.S.C. § 1983 in
the Southern District of California since 2006. See https://pcl.uscourts.gov/search (website last visited
July 26, 2017).
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wholly incredible,” Denton, 504 U.S. at 33, and as such, his Complaint requires dismissal
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as frivolous and without leave to amend. See Lopez v. Smith 203 F.3d 1122, 1127 n.8
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(9th Cir. 2000) (en banc) (noting that if a claim is classified as frivolous, “there is by
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definition no merit to the underlying action and so no reason to grant leave to amend.”).
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III.
Conclusion and Order
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Good cause appearing, 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. 2); and
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DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
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relief may be granted and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and without
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leave to amend.
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3.
CERTIFIES that an IFP appeal from this Order would also be frivolous and
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therefore, could 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).
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IT IS SO ORDERED.
Dated: August 3, 2017
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