Florence v. Benrostrol

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 DAVID FLORENCE, Case No.: 3:19-cv-00446-CAB-KSC CDCR #H-42260, — 12 — ORDER DENYING MOTION FOR Plaintiff, 13 RECONSIDERATION vs. — 14 — [ECF No. 9] A. BENROSTROL, et al., — 15 — Defendants. — 16 — — 17 — — 18 — — 19 — — 20 — I. Procedural History — 21 — On March 6, 2019, Plaintiff, David Florence, an inmate currently incarcerated at — 22 — North Kern State Prison (“NKSP”) located in Delano, California filed a civil rights — 23 — Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). In addition, Plaintiff filed a — 24 — certified copy of his inmate trust account statement which the Court liberally construed as — 25 — a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 (a) (ECF — 26 — No. 2). — 27 — On April 22, 2019, the Court GRANTED Plaintiff’s Motion to Proceed IFP and — 28 — 1 may be granted pursuant to 28 U.S.C. § 1915 (e)(2) & § 1915A. (ECF No. 3.) In 2 addition, the Court found that Plaintiff’s Complaint, which was nearly one hundred and 3 fifty (150) pages and named forty-five (45) defendants violated Rule 8 of the Federal 4 Rules of Civil Procedure. (Id. at 4-5.) Plaintiff was granted leave to file an amended 5 pleading in order to correct the deficiencies of pleading identified in the Court’s Order. 6 (Id. at 9.) On June 18, 2019, Plaintiff filed his First Amended Complaint (“FAC”). 7 (ECF No. 5.) 8 However, the Court found that Plaintiff failed to correct any of the deficiencies 9 noted in the Court’s previous Order and all the claims in his FAC were barred by the 10 applicable statute of limitations. (ECF No. 6 at 3-6.) Plaintiff has now filed a “Motion 11 for Reconsideration” of the Court’s July 12, 2019 Order. (ECF No. 9.) 12 II. Plaintiff’s Motion for Reconsideration 13 A. Plaintiff’s Arguments 14 In his Motion, Plaintiff argues that he is entitled to tolling of his claims “while he 15 exhausts his administrative remedies.” Pl.’s Mtn. at 5; citing Brown v. Valoff, 422 F.3d 16 926, 943 (9th Cir. 2005) (holding that an inmate is entitled to the tolling of the applicable 17 statute of limitations while they are exhausting their administrative remedies as required 18 by 42 U.S.C. § 1997e(a)). In addition, while Plaintiff acknowledges that he is serving a 19 life sentence without the possibility of parole, California courts have liberally construed 20 California’s statutory law allowing for an additional two years of tolling only for inmates 21 who are serving a sentence of a “term for less than life.” Pl.’s Mtn. at 9; citing 22 CAL.CIV.PROC. CODE § 352.1. 23 B. Standard of Review 24 Under Rule 60, a motion for “relief from a final judgment, order or proceeding” 25 may be filed within a “reasonable time,” but usually must be filed “no more than a year 26 after the entry of the judgment or order or the date of the proceeding.” FED. R. CIV. P. 27 60(c)(1). 28 / / / 1 Rule 60(b) provides for reconsideration where one or more of the following is 2 shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered 3 evidence which by due diligence could not have been discovered before the court's 4 decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has 5 been satisfied; (6) any other reason justifying relief. FED. R. CIV. P. 60(b); School Dist. 1J 6 v. ACandS Inc., 5 F.3d 1255 , 1263 (9th Cir. 1993). 7 On the face of Plaintiff’s Complaint and FAC, he clearly indicates that the events 8 giving rise to his claims occurred in 2013 and up to September of 2014. See Compl. at 1; 9 FAC at 1. Plaintiff filed this action on March 6, 2019. See Compl. at 1. Thus, he filed 10 his action approximately four and one-half years after the alleged constitutional 11 violations occurred. 12 As the Court informed Plaintiff in both its April 22, 2019 and July 12, 2019 13 Orders, because section 1983 contains no specific statute of limitation, federal courts 14 apply the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, — 15 — 393 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 16 2004); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). 17 California law allows for a two year statute of limitations. CAL. CIV. PROC. CODE 18 § 335.1. In addition, as stated above, inmates serving a term of less than life receive an 19 additional two years of statutory tolling. CAL. CIV. PROC. CODE § 352.1(a); Johnson v. 20 California, 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 21 (2005). Plaintiff acknowledges that he is serving a sentence of life without the possibility 22 of parole. Pl.’s Mtn. at 4. However, even if the Court were to allow Plaintiff the extra 23 two years of statutory tolling, his claims would still be untimely by a period of at least six 24 months. 25 Plaintiff also argues, correctly, that he is entitled to tolling for the duration of time 26 that he took the steps to properly exhaust his administrative remedies. Pl.’s Mtn. at 5; 27 citing Valoff, 422 F.3d at 943 . However, Plaintiff offers no plausible factual allegations 28 regarding his attempts to exhaust his administrative remedies. Moreover, he does not 1 || attach any exhibits to his Complaint, FAC, or his current Motion that would document his 2 || attempts to exhaust his administrative remedies. Therefore, Plaintiff is not entitled to any 3 || additional tolling pursuant to Valoff. 4 Conclusion and Order 5 Based on the foregoing, the Court DENIES Plaintiff's Motion for Reconsideration 6 || (ECF No. 9). 7 The Clerk of Court is directed to close the file. 8 IT IS SO ORDERED. 9 ||Dated: September 10, 2019 (GR — 10 — Hon. Cathy Ann Bencivengo 1 United States District Judge — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — 4 □□