(PC) Johnson v. Frauenheim ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LACEDRIC WILLIAM JOHNSON, Case No. 1:18-cv-01477-AWI-BAM (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT’S MOTION TO 12 v. DISMISS WITHOUT LEAVE TO AMEND 13 SCOTT FRAUENHEIM, et al., (ECF No. 19) 14 Defendants. FOURTEEN (14) DAY DEADLINE 15 16 Plaintiff LaCedric William Johnson is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 18 Currently before the Court is Defendants Bejinez’s, Benavides’s, Deshazo’s, Espinoza’s, 19 Hill’s, Hoggard’s, Kennedy’s, Leon’s, Lopez’s, Luna’s, Newton’s, Salas’s, Santos’s, and 20 Trinidad’s filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the 21 ground that this action is barred by the applicable statute of limitations. (ECF No. 19.) 22 I. Introduction 23 Plaintiff initiated this action on October 26, 2018. (ECF No. 1.) On October 17, 2019, the 24 Court screened Plaintiff’s complaint and found that Plaintiff alleged cognizable claims: (1) for 25 excessive force against Defendants Santos, Leon, Benavides, Hill, Salas, Luna, Lopez, Kennedy, 26 Bejinez, and Trinidad, (2) for violation of Plaintiff’s First Amendment right to free exercise of 27 religion against Defendants Salas, Bejinez, Trinidad, and Deshazo, (3) for unconstitutional 28 conditions of confinement against Defendants Deshazo, Bejinez, Trinidad, and Benavides, (4) for 1 deliberate indifference to serious medical needs against Defendants Benavides, Bejinez, Deshazo, 2 Hoggard, and Trinidad, and (5) for failure to intervene against Espinoza, Luna, and Newton. 3 (ECF No. 8.) However, Plaintiff failed to state any other cognizable claims against any other 4 Defendants. (Id.) Plaintiff was ordered to either file a first amended complaint or notify the 5 Court in writing of his willingness to proceed only on the claims found to be cognizable by the 6 Court. (Id. at 35-36.) 7 On October 28, 2019, Plaintiff notified the Court in writing of his willingness to proceed 8 only on the cognizable claims identified by the Court. (ECF No. 11.) 9 On October 30, 2019, based on Plaintiff’s written willingness to proceed only on the 10 cognizable claims, the Court issued an order stating that this action would proceed on Plaintiff’s 11 complaint: 1) for excessive force against Defendants Santos, Leon, Benavides, Hill, Salas, Luna, 12 Lopez, Kennedy, Bejinez, and Trinidad, (2) for violation of Plaintiff’s First Amendment right to 13 free exercise of religion against Defendants Salas, Bejinez, Trinidad, and Deshazo, (3) for 14 unconstitutional conditions of confinement against Defendants Deshazo, Bejinez, Trinidad, and 15 Benavides, (4) for deliberate indifference to serious medical needs against Defendants Benavides, 16 Bejinez, Deshazo, Hoggard, and Trinidad, and (5) for failure to intervene against Espinoza, Luna, 17 and Newton. (ECF No. 12.) Further, the Court dismissed all other claims and defendants from 18 this action. Fed. R. Civ. P. 15(a), 41(a)(1)(A)(i); see Hells Canyon Preservation Council v. U.S. 19 Forest Service, 403 F.3d 683, 687-88 (9th Cir. 2005). (Id.) 20 On November 4, 2019, the Court issued an order finding service of Plaintiff’s complaint 21 appropriate and directing e-service on Defendants Bejinez, Benavides, Deshazo, Espinoza, Hill, 22 Hoggard, Kennedy, Leon, Lopez, Luna, Newton, Salas, Santos, and Trinidad. (ECF No. 16.) 23 On January 9, 2020, as noted above, Defendants Bejinez, Benavides, Deshazo, Espinoza, 24 Hill, Hoggard, Kennedy, Leon, Lopez, Luna, Newton, Salas, Santos, and Trinidad filed a motion 25 to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that this action is 26 barred by the applicable statute of limitations. (ECF No. 19.) Plaintiff filed an opposition to 27 Defendant’s motion to dismiss on February 6, 2020, and Defendants filed a reply on February 11, 28 2020. (ECF Nos. 23, 24.) Accordingly, Defendants’ motion to dismissed is deemed submitted 1 for decision. Local Rule 230(l). 2 II. Legal Standard 3 A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a 4 claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of 5 sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 6 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a Rule 7 12(b)(6) motion, a court’s review is generally limited to the operative pleading. Daniels-Hall v. 8 National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 9 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 10 “A court may, however, consider certain materials – documents attached to the complaint, 11 documents incorporated by reference in the complaint, or matters of judicial notice – without 12 converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 13 342 F.3d 903, 908 (9th Cir. 2003). 14 To survive a motion to dismiss, a complaint must contain sufficient factual matter, 15 accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks 17 omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 18 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable 19 inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 20 910; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, pro 21 se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved 22 in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 23 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe 24 v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 25 III. Discussion 26 A. Summary of Plaintiff’s Complaint 27 Plaintiff is currently housed at California State Prison, Solano. Plaintiff alleges that the 28 events at issue took place at Pleasant Valley State Prison (“PVSP”). 1 2 Plaintiff alleges as follows: Custody staff at PVSP have a longstanding practice of using 3 pat-down and unclothed body searches to initiate assaults against targeted inmates as a means of 4 intimidation, harassment, and retaliation resulting in false 115 Rules Violation Reports alleging 5 “battery of peace officer” and disciplinary sanctions, i.e., administrative segregation placement, 6 Security Housing Unit term, increased classification score, forfeiture of good-time/worktime 7 credits, possible transfer and referral to the District Attorney for prosecution. At the time of this 8 incident, Plaintiff fit the criteria of a “targeted inmate” because he was actively pursuing a 9 conversion action in the Superior Court of California, County of Fresno against two PVSP prison 10 guards who intentionally discarded legal files to five active cases, religious property, and personal 11 property. 12 On January 29, 2014, at 0930 hours, Facility Bravo (Facility B) yard, Defendant 13 Benavides was conducting a controlled yard release with random pat-down searches being 14 conducted by approximately ten correctional officers. During the Building 1 yard release, 15 Plaintiff forgot his identification card in his cell. Since inmates must carry their identification 16 card on their person, Plaintiff summoned Defendant Newton, the Building 1 Control Tower 17 Officer, for an unlock, explaining that he had forgotten his identification card in his cell and 18 requesting an unlock to gain access. Defendant Newton denied Plaintiff’s request. 19 Defendant Santos, the Building 1 First Tier Floor Officer, ordered Plaintiff to “strip-out” 20 in the lower B section shower. Plaintiff took off all of his clothes except for his boxers, gave 21 them to Defendant Santos and Defendant Leon, the Second Tier Officer, along with his legal 22 folder, and stood waiting until the search of his clothing and legal folder was completed. 23 Defendant Santos approached the shower and told Plaintiff, “Give me your boxers,” just as 24 Defendant Luna and Defendant Espinoza, a female officer, entered the building and looked 25 towards the shower and the ongoing search. (ECF No. 1, at 7.) Plaintiff stated, “One moment out 26 of respect for the women, I’m Muslim.” (Id.) Defendant Santos then opened the shower gate and 27 barked “Cuff Up! Cuff Up! Get Down!” (Id.) When Plaintiff asked what he had done, Defendant 28 Santos emptied a canister of O.C. pepper spray directly in Plaintiff’s face, blinding him. Plaintiff 1 stumbled blindly to the back of the shower, turned the water on, and rinsed his eyes, with his back 2 to Defendant Santos. Defendant Santos then entered the shower and began striking Plaintiff 3 across the knee of his left leg with rapid, hard successive blows with his MEB expandable baton, 4 which caused Plaintiff’s surgically repaired knee to weaken, become painful, and a wound on the 5 knee to open up and bleed. When Plaintiff turned around, Defendant Santos left the shower. 6 At that point, Defendant Leon emptied a canister of O.C. pepper spray into Plaintiff’s 7 face, blinding Plaintiff and causing Plaintiff to inhale mace through his nose, choking Plaintiff, as 8 Defendant Leon yelled for Plaintiff to “Get the fuck down!” (Id.) Plaintiff turned, placed his 9 head under the water to rinse his eyes, due to the burning and blindness, and attempted to comply 10 with the order to prone out on the shower, but pain from the injured knee and leg made 11 compliance difficult. Defendant Santos entered the shower for a second time and began beating 12 Plaintiff across the arm, wrist, elbow, and body with his MEB baton. When Plaintiff stood up and 13 raised his arms to protect himself from blows to his head, Defendant Santos ran out of the shower 14 again. 15 As Plaintiff was being beaten by Defendant Santos, Defendant Espinoza made a call over 16 her radio of a disturbance in Building 1. All inmates were ordered down. Defendant Benavides 17 and approximately 10 other officers who were outside of the building entered the building, 18 waving batons and shaking up their canisters of O.C. pepper spray. The officers formed a 19 skirmish line in front of the shower, yelling “Get down!” (Id. at 8.) Defendant Santos then 20 sprayed Plaintiff in the face with another canister of O.C. pepper spray. Further, the officers who 21 had responded to Defendant Espinoza’s call also emptied numerous canisters of O.C. pepper 22 spray directly into Plaintiff’s face, further blinding, burning, and choking Plaintiff, as they yelled 23 “Get down!” (Id.) As Plaintiff attempted to prone out in a pool of pepper spray, Defendant 24 Santos entered the shower for a third time and began beating Plaintiff across the arms and legs 25 with his MEB baton. Defendant Santos then grabbed Plaintiff by the ankle and dragged Plaintiff 26 out of the shower and onto the dayroom floor. 27 Defendant Hill and Defendant Salas then jumped on Plaintiff’s back, causing pain, and 28 both began punching Plaintiff in the face and head. Plaintiff’s head bounced off of the concrete 1 floor approximately three times. Out of fear, Plaintiff attempted to protect his left wrist, which 2 was swollen, throbbing, and disfigured, by placing it under his torso. While Plaintiff was using 3 his right arm to protect his head and face from punches to the head and face by Defendants Hill 4 and Salas, Defendant Benavides grabbed his right hand and wrist and held it. Defendants 5 Benavides, Luna, Lopez, and Salas were punching and pulling on Plaintiff’s wrist, while yelling, 6 “Stop resisting!” (Id. at 9.) At no time did any of the surrounding officers intervene to stop the 7 beating of Plaintiff. 8 When an unknown officer began kicking Plaintiff in the genitalia, Plaintiff began twisting 9 his hips, making his genitalia a moving target, to avoid further contact. Other officers began 10 kicking and stomping Plaintiff’s legs and torso until Plaintiff became weak. Defendant Kennedy 11 continued kicking Plaintiff. Defendants Benavides, Hill, Lopez, Luna, and Salas continued 12 punching Plaintiff and pulling on Plaintiff’s harms. Defendant Hill stated: “He’s screaming like a 13 bitch.” (Id.) Plaintiff’s wrists were then cuffed behind his back, extremely tight. Defendant 14 Benavides grabbed Plaintiff’s ankles and Officer Ramirez placed flex cuffs on Plaintiff’s ankles, 15 tightly, which dug into Plaintiff’s flesh, causing bleeding and pain. 16 Medical staff were summoned. Defendant Hoggard and three Licensed Vocational 17 Nurses, Hansen, Liebold, and Sharp, brought a gurney. Defendants Benavides and Santos, and 18 Officer Ramirez lifted Plaintiff, placed Plaintiff in a stokes litter, and then placed him on the 19 gurney. Defendant Salas took Plaintiff’s boxer shorts off and placed the pepper-spray soaked 20 underwear over Plaintiff’s head, burning Plaintiff’s face. Plaintiff was naked in the presence of 21 three Licensed Vocational Nurses, Hansen, Liebold, and Sharp, and Defendant Espinoza, all 22 women. Nothing was placed over Plaintiff to cover his genitalia. 23 Defendants Bejinez and Trinidad then wheeled Plaintiff, naked, on the gurney across the 24 yard in the presence of the inmate population, custody staff of both genders, and support services 25 staff. Plaintiff was taken to the Facility B medical clinic, where he arrived at approximately 0945 26 hours. Defendant Deshazo was the assigned medical triage coverage officer. 27 Defendants Bejinez and Trinidad lifted Plaintiff off of the gurney in the stokes litter and 28 slammed Plaintiff to the ground in the holding tank. The already tight handcuffs that were under 1 Plaintiff’s body clicked even tighter, which caused the handcuffs to dig deeper into Plaintiff’s 2 injured wrist, flesh, and bone, causing excruciating pain. Plaintiff asked Defendant Deshazo to 3 loosen, or remove, the cuffs and to summon medical staff for treatment. However, Defendant 4 Deshazo stated “No. And shut up!” while Plaintiff was screaming in pain, hyperventilating, 5 coughing, and sweating. Defendant Deshazo placed a spit mask hood over Plaintiff’s head, in 6 violation of CDCR’s Department Operation Manual, which forbids placement of a spit hood on 7 an inmate suffering from pepper spray exposure. Plaintiff was showing apparent signs of 8 respiratory distress and weakness from the beating. Plaintiff was choking, gagging for air, 9 hyperventilating, sweating, phlegm and mucus was sticking to the spit hood mask, which clogged 10 up the mask and caused Plaintiff to suffocate and fight for air. Plaintiff’s lungs are damaged by 11 Valley Fever spores. Plaintiff was in and out of consciousness. Defendant Deshazo disregarded 12 Plaintiff’s pleas for help while the hand and flex ankle cuffs were cutting into Plaintiff’s flesh, the 13 spit hood was restricting the oxygen to Plaintiff’s lungs and brain, Plaintiff was burning all over 14 from excessive pepper spray, Plaintiff’s head was throbbing, and Plaintiff was bleeding and 15 swelling. Defendant Deshazo just ignored Plaintiff, even though he was within 10 feet of 16 Plaintiff. At no time did Defendant Deshazo cover up Plaintiff’s genitalia. Instead, Defendant 17 Deshazo left Plaintiff hog-tied, naked, and suffering for an hour. In fact, Defendant Deshazo 18 opened the door to medical and let another inmate in, who witnessed Plaintiff, naked and 19 suffering on the floor. 20 All inmates were ordered to lock up for a yard recall over the PA system. Another inmate, 21 who witnessed Plaintiff being wheeled across the yard naked, also witnessed the responding 22 officers exit Building 1 high-fiving and fist bumping. 23 At approximately 1045 hours, Defendants Bejinez and Trinidad had a conversation with 24 Defendant Benavides at the Facility B medical entrance. Then, Defendants Bejinez and Trinidad 25 grabbed a gurney, placed Plaintiff on the gurney, and wheeled him, still naked, across the yard to 26 the gym for decontamination. Defendants Bejinez and Trinidad removed the spit mask. After 27 one of the Defendants stated that the showers were not working, they left Plaintiff lying in the 28 stokes litter on the gurney suffering and sat down and held a conversation among themselves. 1 Defendant Benavides entered the gym and told Defendants Bejinez and Trinidad to remove 2 Plaintiff’s cuffs, take Plaintiff out of the stokes litter, and place Plaintiff on the bench. Plaintiff 3 could not hold himself up and was slumped over because he was weak and could not support 4 himself with his injured arm, wrist, knees, or leg. Defendants Bejinez and Trinidad then just sat 5 back down and resumed their personal conversation. 6 At that point, Gomez, who is not a defendant, entered the gym, assessed the situation, 7 filled a bucket with water from a sink, and poured it over Plaintiff’s head. After Gomez poured a 8 second bucket of water over Plaintiff, Plaintiff requested that Gomez pour a third bucket of water 9 over him because his penis was burning. Plaintiff informed Gomez that the burning was 10 unbearable. However, Gomez stated that: “You’ll be better off without water, water agitates the 11 chemical.” Plaintiff’s eyes were never rinsed. 12 Defendant Hoggard then entered the gym, stopped approximately ten feet away from 13 Plaintiff, wrote something down on a piece of paper, and exited the gym. Plaintiff assumed that 14 Defendant Hoggard, who is a nurse, was going to return to provide medical care, but Defendant 15 Hoggard did not. Instead, as soon as Defendant Hoggard exited the gym, Defendant Benavides 16 entered the gym, told Defendants Bejinez and Trinidad to prepare Plaintiff for transport to Delta-4 17 ad-seg (administrative segregation) unit, and gave Plaintiff a pair of boxer shorts. Plaintiff was 18 unable to put the boxer shorts on without assistance. 19 Defendant Hoggard’s CDCR 7219 Injury/Assessment Medical Report of Injuries only 20 indicated that Plaintiff had a scratch/abrasion on his left knee and O.C. pepper spray on his torso. 21 Plaintiff asserts that this orchestrated plan of action between Defendants Benavides and Hoggard 22 to minimize Plaintiff’s documented injuries was done in order to isolate Plaintiff in ad-seg and to 23 prevent Plaintiff from getting medical care, which would have opened up a serious investigation 24 into excessive force and the completion of an excess force video deposition as required by prison 25 regulations. 26 At approximately 1200 hours, Defendants Bejinez and Trinidad had to carry Plaintiff into 27 the Delta 4 segregation unit by putting their shoulders under his arms in order to drag Plaintiff. 28 Plaintiff was found unresponsive in Cell #127 at 1600 hours by a Delta 4 unit officer. 1 After officers entered the cell, Delta 4 unit medical staff, Licensed Vocational Nurse D. Hall was 2 summoned. After Nurse Hall ascertained that Plaintiff’s injuries were severe and his vitals were 3 high, Nurse Hall made arrangements for Plaintiff to be taken to PVSP Correctional Treatment 4 Center (“CTC”). Plaintiff’s visible signs of injury were assessed and documents by Registered 5 Nurse K. Bradley on a CDCR 7219 Injury/Assessment Report. Plaintiff was evaluated by Dr. 6 Ola, given a shot for pain management, and then sent to Community Regional Medical Center in 7 Fresno. Plaintiff was admitted to the hospital, monitored throughout the night, and then released 8 on January 30, 2014. 9 On January 30, 2014, Plaintiff was housed at PVSP CTC for medical evaluation and 10 monitoring. The physical signs of trauma to Plaintiff’s head and body were more prominent. 11 Plaintiff’s eyes were black and blue, he had broken blood vessels in both eyes, his left wrist was 12 deformed and swollen, he had a loss of feeling in his left hand, he had a numb and tingling 13 sensation in his left extremities, a bruised left bicep and rib, his left knee was swollen with two 14 lacerations, his left shin was swollen, he had a right inside ankle gash, an intense headache and 15 pain all over his body, and his eyes and body were burning from pepper spray. Facility B. 16 Captain A. Shimmins personally came to CTC, visually observed Plaintiff, issued Plaintiff a 17 CDCR 114-D Lockup order, and told Plaintiff that Plaintiff would be released to ad-seg once 18 released by medical and that Plaintiff would be issued a CDCR 115 Rules Violation Report for 19 “Battery on a Peace Officer.” 20 On January 31, 2014, at 1000 hours, Plaintiff was allowed to take a shower. After about 21 20 minutes, the effects of the pepper spray fully wore off. 22 On February 3, 2014, at 1000 hours, a doctor inquired about Plaintiff’s pain level based on 23 Plaintiff’s apparent head and eye injuries. Plaintiff told the doctor that he felt dizzy, severe 24 headache, and blurred vision. The doctor prescribed Plaintiff ibuprofen, acetaminophen, and 25 made Plaintiff a specialty clinic appointment to see optometry. 26 At 1100 hours on February 3, 2014, Defendant Santos, escorted by I. Gonzalez, a 27 defendant in Plaintiff’s Fresno County Superior Court conversion action, case number 28 13CECG02602, provided Plaintiff with a CDCR 1083 Property Inventory Receipt. After Plaintiff 1 noticed that there was no documentation of his legal files, books, and religious materials, he 2 refused to sign the property receipt. 3 On February 5, 2014, Defendant Santos, along with A. Martinez, another defendant in 4 Plaintiff’s Fresno County Superior Court conversion action, case number 13CECG02602, brought 5 Plaintiff’s property to Delta 4 unit in order to bring Plaintiff’s property within compliance of the 6 6 cubic feet property guideline policy. Plaintiff alleges that it was apparent that some of his 7 property was already missing. Defendant Santos and A. Martinez issued an ultimatum: “Throw it 8 away or send it home,” and began discarding Plaintiff’s property. (Id. at 14.) 9 On February 6, 2014, Plaintiff was brought before the Initial Classification Committee 10 (“ICC”) in Delta 4 unit for ad-seg review. The ICC consisted of, but was not limited to, Warden 11 Frauenheim, Chief Deputy Warden R. Fisher, and Facility B Captain Shimmins. Plaintiff was 12 informed that he would be held in ad-seg pending charges and adjudication of CDCR 115 Rules 13 Violation Report, Log Number #14-FB-01-080, for “Battery on a Peace Officer Resulting in the 14 Use of Force” on January 29, 2014. When Plaintiff stated that he was assaulted by staff and the 15 reports are falsified, Fisher told Plaintiff that Plaintiff should save his statements for a 602 16 grievance or the Rules Violation Report hearing. 17 On February 7, 2014, Plaintiff filed a health care staff complaint against Defendant 18 Hoggard for leaving Plaintiff in the hands of custody staff to suffer from his various injuries and 19 pepper spray exposure and not providing any medical care. 20 On February 12, 2014, Plaintiff was issued CDCR 115 Rules Violation Report, Log 21 Number #14-FB-01-080, for “Battery on a Peace Officer Resulting in the Use of Force.” The 22 Rules Violation Report was signed by Defendant Santos and dated for January 29, 2014. At this 23 point, Plaintiff became aware of the extent of Defendant Santos’ falsified allegations in his report 24 to cover up the excessive force. Defendant Santos’ false misrepresentation were presented to the 25 Fresno County District Attorney and presented at the Rules Violation Report disciplinary hearing. 26 On February 18, 2014, Plaintiff was seen by the mental health department and prescribed 27 Citalopram for severe depression and anxiety and weekly therapy sessions due to the trauma 28 Plaintiff suffered. Also, on February 18, 2014, Plaintiff was taken to the specialty clinic for an 1 optometry examination. It was ascertained that Plaintiff suffered eye damage from the assault 2 and a bi-focal was added to his prescription. Plaintiff also suffered a stigmatism. 3 On February 19, 2014, Plaintiff was issued a CDCR 837 Crime/Incident Report, Log # 4 PVSP-FBP-14-01-0022, dated 1/29/14, and which contained staff reports from Benavides, 5 Bejinez, Erickson, Espinoza, Hill, Kennedy, Leon, Lopez, Luna, Newton, Ramirez, Salas, Santos, 6 Hansen, Hoggard, Liebold, and Sharp. Plaintiff alleges that this was the first opportunity he had 7 to view the coordinated cover up that followed the assault. Plaintiff states that the reports were 8 falsified in order to cover up the systematic brutality by guards. 9 On March 11, 2014, Sergeant Clark, along with Correctional Officer Ruggles, conducted 10 an excessive force video deposition in Delta 4 unit at 1925 hours. On March 18, 2014, Sergeant 11 Clark and Correctional Officer Ruggles conducted a second excessive force video deposition 12 because they “ran out of tape on the last one.” (Id. at 16.) 13 On March 20, 2014, Plaintiff sent an excessive force staff complaint to Warden 14 Frauenheim. 15 Also, on March 20, 2014, Plaintiff requested a voluntary dismissal of Fresno County 16 Superior Court Case No. 13CECG02602 because he was suffering from severe depression, severe 17 headaches, fear of further retaliation, and inadequate law library provisions that limited him to 18 three items of legal resources per week. Additionally, Plaintiff alleges that Defendant Benavides 19 denied Plaintiff two court-ordered telephone court conference calls in Case No. 13CECG02602, 20 hindering Plaintiff’s access to the court on December 23, 2013 and January 6, 2014. On April 23, 21 2014, the voluntary dismissal without prejudice of Case No. 13CECG02602 was granted. 22 Also, on April 23, 2014, Plaintiff’s staff complaint (PVSP 14-0683) against Defendant 23 Santos for falsified reports, assault, and battery was granted in part. 24 On September 18, 2014, medical staff issued Plaintiff a second pair of eyewear to 25 conclude the correction of the damage to his eyes caused by the January 29, 2014 assault. 26 In September 2015, Plaintiff needed an operation to remove a lipoma tumor lesion in his 27 right lateral flank, where Defendant Kennedy and other officers kicked Plaintiff in the rib area 28 with military style boots. 1 On September 22, 2015, Plaintiff suffered temporary blindness in his right eye. He was 2 diagnosed with ocular migraines as a result of defendants beating Plaintiff in the head. 3 B. Requests for Judicial Notice 4 Federal Rule of Evidence 201(d) permits the Court to “take judicial notice at any stage of 5 the proceeding.” “The court may judicially notice a fact that is not subject to reasonable dispute 6 because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be 7 accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” 8 Fed. R. Evid. 201(b). 9 It is well established that a court may take judicial notice of its own records. Trigueros v. 10 Adams, 658 F.3d 983, 987 (9th Cir. 2011); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 11 741, 746 n.6 (9th Cir. 2006); Chandler v. United States, 378 F.2d 906, 909 (9th Cir. 1967). 12 Therefore, the Court grants Defendants’ motion to take judicial notice of court documents and 13 takes judicial notice of the following documents (Request for Judicial Notice (RJN), ECF No. 20, 14 Exs. A-B): 15 Exhibit A. The court docket for Johnson v. Frauenheim, Case No. 1:14-cv-01601- 16 LJO-SKO (E.D. Cal) (“Johnson I”). 17 Exhibit B. Plaintiff’s first amended complaint, filed on November 24, 2014, in 18 Johnson v. Frauenheim, Case No. 1:14-cv-01601-LJO-SKO (E.D. Cal.). 19 Further, the Court also grants Plaintiff’s motion to take judicial notice of the Ninth Circuit 20 Court of Appeals Memorandum Opinion, filed on September 18, 2018, in Johnson v. Bejinez, 21 Case No. 17-16654 (9th Cir.). (ECF No. 23, at 27-29.) 22 C. Statute of Limitations 23 Defendants Bejinez, Benavides, Deshazo, Espinoza, Hill, Hoggard, Kennedy, Leon, 24 Lopez, Luna, Newton, Salas, Santos, and Trinidad contend that Plaintiff’s complaint fails to state 25 any cognizable claim for relief because the complaint is barred by the applicable statute of 26 limitations, including all applicable tolling. In his opposition, Plaintiff asserts that his complaint 27 is not barred by the applicable statute of limitations because he is entitled to 20 months of 28 equitable tolling while he was completing the mandatory exhaustion process, he is entitled to 1 equitable tolling during the period of time when Johnson v. Frauenheim, Case No. 1:14-cv- 2 01601-LJO-SKO (E.D. Cal.) (“Johnson I”) was pending, and because the Ninth Circuit Court of 3 Appeals stated that the judgment in Johnson I was a “dismissal without prejudice to Johnson 4 refiling the action.” (ECF No. 23, at 1, 3.) 5 Initially, the Court begins by determining when Plaintiff’s claims for excessive force 6 against Defendants Santos, Leon, Benavides, Hill, Salas, Luna, Lopez, Kennedy, Bejinez, and 7 Trinidad, for violation of Plaintiff’s First Amendment right to free exercise of religion against 8 Defendants Salas, Bejinez, Trinidad, and Deshazo, for unconstitutional conditions of confinement 9 against Defendants Deshazo, Bejinez, Trinidad, and Benavides, for deliberate indifference to 10 serious medical needs against Defendants Benavides, Bejinez, Deshazo, Hoggard, and Trinidad, 11 and for failure to intervene against Espinoza, Luna, and Newton – all of which are brought 12 pursuant to 42 U.S.C. § 1983 – accrued. 13 Federal law determines when a civil rights claim brought pursuant to 42 U.S.C. § 1983 14 accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007) (“[T]he accrual date of a § 1983 cause of 15 action is a question of federal law that is not resolved by reference to state law.”); Western Ctr. 16 for Journalism v. Cederquist, 235 F. 1156 (9th Cir. 2000) (“While the statute of limitations 17 period is derived from state law, federal law determines when the statute of limitations period 18 accrues.”). Pursuant to “federal rules conforming in general to common-law tort principles[,]” “it 19 is the standard rule that accrual occurs when the plaintiff has a complete and present cause of 20 action, that is, when the plaintiff can file suit and obtain relief.” Wallace, 549 U.S. at 388 21 (internal quotation marks, brackets and citations omitted). Put another way, “[u]nder federal law, 22 a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of 23 the action.” TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). 24 In this case, Plaintiff’s claims are predicated on events that occurred on January 29, 2014. 25 (ECF No. 1, at 3-12.) Further, Plaintiff states in his opposition to the motion to dismiss that 26 “[i]njury accrued January 29, 2014[.]” (ECF No. 23, at 2.) Therefore, Plaintiff’s § 1983 claims 27 were complete, and accrued, on January 29, 2014. See Belanus v. Clark, 796 F.3d 1021, 1025 28 (9th Cir. 2015) (stating that, “an action ordinarily accrues on the date of the injury” (citation and 1 internal brackets omitted)). 2 Next, the Court must apply the statute of limitations applicable to each claim in order to 3 determine whether the statute of limitations lapsed before Plaintiff filed this action. With regards 4 to Plaintiff’s § 1983 claims, the Court applies California’s “statute of limitations for personal 5 injury actions, along with the forum state’s law regarding tolling, including equitable tolling, 6 except to the extent any of these laws is inconsistent with federal law.” Canatella v. Van De 7 Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007) (citation and internal quotation marks omitted); Jones 8 v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (stating that courts apply a state’s statute of 9 limitations for personal injury actions to claims brought pursuant to 42 U.S.C. § 1983). 10 Plaintiff’s § 1983 claims are subject to the two-year statute of limitations set forth in California 11 Code of Civil Procedure § 335.1. See Canatella, 486 F.3d at 1132. 12 In this case, the Court has already determined that Plaintiff’s § 1983 claims accrued on 13 January 29, 2014. Plaintiff filed the instant action on October 26, 2018, approximately four years 14 and nine months after Plaintiff’s § 1983 claims accrued. Therefore, Plaintiff’s federal and state 15 law claims are time-barred unless Plaintiff is entitled to approximately two years and nine months 16 of tolling. 17 1. Statutory Tolling Pursuant to California Code of Civil Procedure § 352.1 18 California Code of Civil Procedure § 352.1(a) provides that the applicable statute of 19 limitations is statutorily tolled for up to two years when a plaintiff is “imprisoned on a criminal 20 charge, or in execution under the sentence of a criminal court for a term less than for life,” at the 21 time that the claim accrues. 22 In this case, Plaintiff’s claims accrued on January 29, 2014, while he was incarcerated at 23 Pleasant Valley State Prison, and it appears that Plaintiff has been incarcerated without 24 interruption from January 29, 2014 through October 26, 2018, the date this action was filed. In 25 fact, Defendants concede in their motion to dismiss that Plaintiff is entitled to the maximum 2- 26 year tolling period established by California Code of Civil Procedure § 352.1(a). (ECF No. 19-1, 27 at 5.) Therefore, Plaintiff is entitled to two years of statutory tolling pursuant to California Code 28 of Civil Procedure § 352.1(a). 1 Consequently, since the tolling provision of California Code of Civil Procedure § 352.1(a) 2 “operates to delay the running of the limitations period[,]” the two-year statute of limitations 3 applicable to Plaintiff’s claims did not start running until January 29, 2016, two years after 4 Plaintiff’s claims accrued on January 29, 2014. Reece v. Basi, No. 2:11-cv-2712 GEB AC, 2013 5 WL 1339048, at *6 (E.D. Cal. Apr. 3, 2013). If Plaintiff is not entitled to any additional statutory 6 or equitable tolling, then the statute of limitations applicable to Plaintiff’s claims expired on 7 January 29, 2018, approximately nine months before Plaintiff filed this action on October 26, 8 2018. 9 2. Equitable Tolling 10 “Equitable tolling under California law operates independently of the literal wording of 11 the Code of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure 12 fundamental practicality and fairness.” Jones v. Blanas, 393 F.3d 918, 928 (9th Cir. 2004) 13 (citations and internal quotation marks omitted). Therefore, “California courts apply equitable 14 tolling to prevent the unjust technical forfeiture of causes of action, where the defendant would 15 suffer no prejudice.” Id. (citations and internal quotation marks omitted). 16 a. Equitable Tolling During Pendency of Mandatory Exhaustion Process 17 Under California law, “[w]here exhaustion of an administrative remedy is mandatory prior 18 to filing suit, equitable tolling is automatic: ‘It has long been settled in this and other jurisdictions 19 that whenever the exhaustion of administrative remedies is a prerequisite to the initiation of a 20 civil action, the running of the limitations period is tolled during the time consumed by the 21 administrative proceeding.’” McDonald v. Antelope Valley Community College, 45 Cal.4th 88, 22 101 (2008) (citation omitted); see Cal. Code. Civ. Proc. § 356 (tolling applies whenever 23 commencement of an action is statutorily prohibited). Therefore, since the Prison Litigation 24 Reform Act (“PLRA”) requires that prisoners exhaust their available administrative remedies 25 prior to filing suit, “the applicable statute of limitations must be tolled while a prisoner completes 26 the mandatory exhaustion process.” Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005); see 27 Jones v. Bock, 549 U.S. 199, 202 (2007) (stating that “the PLRA … requires prisoners to exhaust 28 prison grievance procedures before filing suit”). 1 In this case, as stated above, Plaintiff is entitled to two years of statutory tolling due to his 2 “disability” of imprisonment pursuant to California Code of Civil Procedure § 352.1(a). 3 Therefore, the 2-year statute of limitations applicable to Plaintiff’s § 1983 claims was statutorily 4 tolled from January 29, 2014 to January 29, 2016. 5 Plaintiff also seeks to tack onto the statutorily tolled period, a period of equitably tolling 6 the statute of limitations from January 29, 2014 through August 26, 2015, while he completed the 7 administrative exhaustion process required by the PLRA. (ECF No. 23, at 2.) Defendants argue 8 that Plaintiff is not entitled any equitable tolling while he pursued his administrative remedies 9 because the statute of limitations applicable to Plaintiff’s claims was already being statutorily 10 tolled for the entire time that Plaintiff was pursuing his administrative remedies. (ECF No. 19-1, 11 at 7-8.) 12 The period of equitable tolling that Plaintiff claims he is entitled to – January 29, 2014 13 through August 26, 2015 – is entirely subsumed within the two-year period of statutory tolling – 14 January 29, 2014 through January 29, 2016. If the approximately 19-month period of equitable 15 tolling during which Plaintiff alleges that he was pursuing his administrative remedies is run 16 concurrently with the two-year period of statutory tolling, then Plaintiff’s complaint would be 17 time-barred. However, if the approximately 19-month period of equitable tolling that Plaintiff 18 claims he is entitled to is run consecutively to the two-year period of statutory tolling, then 19 Plaintiff’s complaint would be timely. Nevertheless, whether periods of statutory tolling and 20 periods of equitable tolling are run concurrently, or consecutively, to each other is far from clear. 21 Neither the Ninth Circuit nor California have addressed the relationship between a period 22 of statutory tolling, such as the two-year tolling period under California Code of Civil Procedure 23 § 352.1, and a period of equitable tolling, such as the equitable tolling that occurs while a plaintiff 24 is completing the mandatory administrative exhaustion process, when the two tolling periods 25 occur simultaneously in total or in part. Further, there is no published District Court authority 26 regarding this issue, and unpublished district court decisions are divided. 27 The district courts that have “permitted equitable tolling in addition to statutory tolling 28 when the tolling events overlap have relied upon language from Lantzy [v. Centex Homes, 31 1 Cal.4th 363, 370 (2003)]: ‘[e]quitable tolling under California law operates independently of the 2 literal wording of the [California] Code of Civil Procedure to suspend or extend a statute of 3 limitations as necessary to ensure fundamental practicality and fairness.’” Stevenson v. Holland, 4 No. 1:16-cv-01831-AWI-SKO, 2017 WL 2958731, at *5 (E.D. Cal. July 11, 2017). “Those 5 courts have read California law regarding equitable tolling to require tacking of additional time 6 (beyond the statutory tolling period) to the end of a limitations period when an equitable tolling 7 event occurs during a period of statutory tolling.” Id.; see id. at *6 (stating that “[a]pplication of 8 statutory and equitable tolling consecutively is more “consistent with Ninth Circuit authority on 9 tolling pending exhaustion of administrative relief” and with “the mandate of California law to 10 tack time to the end of the limitations period for equitable tolling”); Carranza v. Lewis, No. 15- 11 cv-00682-YGR (PR), 2017 WL 1050538, at *18 (N.D. Cal. Mar. 17, 2017) (“Pursuant to Lantzy, 12 no matter when it took place, the [equitably] tolled interval is ‘tacked onto the end of the 13 limitations period,’ thus extending Plaintiff’s deadline for suit by the entire length of time during 14 he was pursuing his administrative filings.”); Akhtar v. Mesa, No. 2:09-cv-2733 MCE AC P, 15 2014 WL 1922576, at *7 (E.D. Cal. May 14, 2014) (applying equitable tolling for the duration of 16 the prison exhaustion process and statutory tolling to a prisoner’s claim to extend the limitations 17 period beyond four years). 18 On the other hand, “[t]he district courts that have declined to apply equitable tolling in 19 addition to statutory tolling when the equitable tolling event overlaps with the period of statutory 20 tolling have relied upon (1) the ‘common sense’ explanation that ‘when two or more reasons for 21 tolling exist’ during the same period that those reasons ‘will toll concurrently during the time they 22 are both active, and are not tacked consecutively, one upon the other, [to extend the limitations 23 period]’ and (2) Rose v. Petaluma & S.R. Ry. Co. for the proposition that separate periods of 24 disability cannot be tacked” onto each other. Stevenson, 2017 WL 2958731, at *6 (quoting 25 Lopez v. Schwarzenegger, No. CIV S-09-1760 MCE GGH P, 2012 WL 78377, at *5); see Turner 26 v. Cate, No. CV 15-109-JVS (AGR), 2016 WL 11517023, at *4 (C.D. Cal. July 22, 2016) (stating 27 that, where the plaintiff claimed that he completed the mandatory exhaustion process “before the 28 two-year tolling period under § 352.1 ended[,]” there was no “basis for additional tolling under 1 Brown” because “[t]he two-year statute of limitations … had not yet started to run” when the 2 plaintiff exhausted administrative remedies); Oliver v. McDaniel, No. CV 14-0334-JVS (PJW), 3 2016 WL 4535389, at *3 (C.D. Cal. June 2, 2016) (“The general rule is that tolling is applied 4 concurrently, not consecutively. Thus, when two tolling provisions apply to the same period of 5 time, they overlap each other and are not tacked onto each other.”); Gutierrez v. Butler, No. CIV 6 S-06-2684 LKK EFB P, 2008 WL 436948, at * (E.D. Cal. Feb. 14, 2008) (holding that, when the 7 time it took to exhaust administrative remedies “coexisted with the two-year statutory disability 8 based on imprisonment[,]” the few months it took the plaintiff to exhaust “was subsumed” by the 9 two-year statutory tolling period and thus, under Rose, the plaintiff could not extend the 10 limitations period for the time to took to exhaust administrative remedies). 11 Neither side of the division is entirely persuasive. “While it is correct that California law 12 does not permit … periods of disability to be strung together to extend the disability tolling 13 period” under Rose (a succession of disabilities cannot be tacked upon the first disability so as to 14 prevent the operation of the statute), “tolling for administrative exhaustion is not a species of 15 disability tolling.” Reece, 2013 WL 1339048, at *7. On the other hand, the Lantzy decision “does 16 not support the contrary conclusion that California intends all tolling to be consecutive.” Id. 17 Lantzy’s “language about tacking tolled intervals onto the end of the limitations period illustrates 18 the effect of tolling on the calculation of dates.” Id. “That illustration follows the description of 19 the technical operations of tolling, which in general stops a clock that is otherwise running. 20 Lantzy did not consider, and cannot govern, a situation in which a limitations period is already 21 tolled when an event with independent power to toll occurs.” Id. (italics in original). Thus, the 22 cases which permitted tacking a tolling time to the end of a statutory limitations period did not 23 consider whether the limitations period had already run. 24 After careful consideration, the Court finds that the rationale of the district courts that 25 have declined to apply equitable tolling in addition to statutory tolling when the equitable tolling 26 event overlaps with the period of statutory tolling are more persuasive. “At any given time 27 following the accrual of a cause of action, the limitations period is either running or it is tolled, 28 and only a running statute can be tolled. Under California law, § 352.1(a) prevents the statute of 1 limitations from running until two years after accrual of a prisoner’s cause of action.” Id. at *8; 2 Martin v. Biaggini, No. 12-cv-06289-JD, 2015 WL 1399240, at *4 (N.D. Cal. Mar. 26, 2015). 3 Therefore, when a prisoner completes the mandatory exhaustion process while California Code of 4 Civil Procedure § 352.1(a) is preventing the statute of limitations from running, there is nothing 5 to be tolled by the period of time that it took for the prisoner to exhaust administrative remedies. 6 Reece, 2013 WL 1339048, at *8; Martin, 2015 WL 1399240, at *4; see also Turner, 2016 WL 7 11517023, at *4. Consequently, the Court finds that, in a situation where a prisoner’s exhaustion 8 of prison remedies is completed during the two-year statutory tolling period established in 9 California Code of Civil Procedure § 352.1(a), the statutory and equitable tolling periods will be 10 applied to toll the applicable statute of limitations concurrently, not tacked consecutively in order 11 to extend a prisoner’s statute of limitations beyond four years. Lopez, 2012 WL 78377, at *5. 12 Accordingly, in this case, California Code of Civil Procedure § 352.1(a) prevented the 13 two-year statute of limitations applicable to Plaintiff’s § 1983 claims from beginning to run until 14 January 29, 2016, two years after Plaintiff’s claims initially accrued on January 20, 2014. 15 Further, as stated above, the period of equitable tolling that Plaintiff claims he is entitled to for 16 completing the mandatory administrative exhaustion process – from January 29, 2014 through 17 August 26, 2015 – is entirely subsumed within the two-year period of statutory tolling. 18 Therefore, Plaintiff’s periods of statutory tolling and equitable tolling toll the statute of 19 limitations applicable to Plaintiff’s § 1983 claims concurrently. Thus, Plaintiff is not entitled to 20 have approximately 19 months of equitable tolling consecutively tacked onto the two years of 21 statutory tolling and the two-year statute of limitations. 22 As a result, Plaintiff’s statutory and equitable tolling periods tolled the two-year statute of 23 limitations applicable to Plaintiff’s claims until January 29, 2016, two years after Plaintiff’s 24 claims initially accrued on January 29, 2014. Thus, if Plaintiff is not entitled to any additional 25 equitable tolling, then the statute of limitations applicable to Plaintiff’s claims expired on January 26 29, 2018, approximately nine months before Plaintiff filed this action on October 26, 2018. 27 b. California’s General Doctrine of Equitable Tolling 28 “The general doctrine of equitable tolling suspends the running of a statute of limitations 1 when a plaintiff, possessing several legal remedies, reasonably and in good faith pursues one 2 designed to lessen the extent of his injuries or damages.” Dimcheff v. Bay Valley Pizza, Inc., 84 3 F. App’x 981, 983 (9th Cir. 2004). “Under California law, tolling is appropriate in a later suit 4 when an earlier suit was filed and where the record shows: (1) timely notice to the defendant in 5 filing the first claim; (2) lack of prejudice to the defendant in gathering evidence to defendant 6 against the second claim; and (3) good faith and reasonable conduct by the plaintiff in filing the 7 second claim.” Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002) (citation and internal 8 quotation marks omitted); see also Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999). A plaintiff 9 is only entitled to equitable tolling if all three prongs of the test are satisfied. Daviton v. 10 Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1140 (9th Cir. 2001). 11 Here, Plaintiff contends that he is entitled to equitable tolling pursuant to California’s 12 general doctrine of equitable tolling for the period of time that Johnson I was pending. (ECF No. 13 23, at 3-4. However, Defendants argue that Plaintiff is not entitled to equitable tolling for the 14 time period that Johnson I was pending under California’s general doctrine of equitable tolling 15 because the general doctrine does not apply where a plaintiff pursues successive claims in the 16 same forum. (ECF No. 19-1, at 5-6.) 17 In this case, prior to filing the instant action, Plaintiff filed Johnson I in the U.S. District 18 Court for the Eastern District of California on October 14, 2014, and litigated Johnson I in the 19 District Court until the District Court granted the defendants’ motion for summary judgment on 20 Plaintiff’s failure to exhaust his administrative remedies prior to filing suit and entered judgment 21 against Plaintiff on March 1, 2017. (ECF No. 20, at 9, 16.) Then, Plaintiff appealed and litigated 22 Johnson I before the Ninth Circuit Court of Appeals until September 18, 2018, when the Ninth 23 Circuit affirmed the judgment against Plaintiff. (Id. at 7.) Therefore, if Plaintiff is entitled to 24 equitable tolling from October 14, 2014 through September 18, 2018, then Plaintiff’s complaint is 25 timely. 26 However, California law provides that, while a statute of limitations in one forum may be 27 equitably tolled while a plaintiff pursues a claim in another forum, the general doctrine of 28 equitable tolling does not apply when a party pursues nearly identical claims in the same forum. 1 Schwarz v. Meinberg, 761 F. App’x 732, 735 (9th Cir. 2019) (“We have previously interpreted 2 California law to hold that pendency of a claim in one forum does not toll the statute of limitation 3 for a later claim in the same forum.”); Martell v. Antelope Valley Hosp. Med. Ctr., 67 Cal. App. 4 4th 978, 985 (1998). 5 In this case, after reviewing the claims pursued by Plaintiff in Johnson I and comparing 6 them to the claims pursued by Plaintiff in the instant action, the claims raised in Johnson I are 7 nearly identical to the claims raised in this action. Both Johnson I and this action arise out of the 8 same incident between Plaintiff and numerous defendants that occurred on January 29, 2014 at 9 Pleasant Valley State Prison, most of the defendants in Johnson I are also defendants named in 10 this action, and Plaintiff pursued nearly the exact same claims in Johnson I as he is pursuing in 11 this action. Therefore, since Johnson I was litigated in the same federal form as this action, the 12 Court finds that plaintiff is not entitled to any tolling pursuant to California’s general doctrine of 13 equitable tolling for the length of time that Johnson I was pending before the U.S. District Court 14 for the Eastern District of California and the Ninth Circuit Court of Appeals.1 15 Consequently, if Plaintiff is not entitled to any other type of equitable tolling, then the 16 statute of limitations applicable to Plaintiff’s claims expired on January 29, 2018, approximately 17 nine months before Plaintiff filed this action on October 26, 2018. 18 c. Equitable Tolling Pursuant to Bollinger v. Nat’l Fire Ins. Co. 19 Next, the Court must consider whether Plaintiff is entitled to equitable tolling pursuant to 20 Bollinger v. Nat’l Fire Ins. Co., 25 Cal. 2d 399 (1944). Unlike the general doctrine of equitable 21 tolling, Bollinger applies when a plaintiff refiles the same or virtually identical claims in the same 22 forum and “seeks equitable relief from the statute of limitations.” Dimcheff, 84 F. App’x at 983. 23 “[T]hree elements [must] be present before the Bollinger rule of equitable tolling will apply: (1) 24 the plaintiff must have diligently pursued his or her claim; (2) the fact that the plaintiff is left 25 without a judicial forum for resolution of the claim must be attributable to forces outside the 26 11 There is no authority for Plaintiff’s argument that the time during Plaintiff’s appeal to the Ninth 27 Circuit was tolled. (ECF No. 23 at 31-32.) The appeal was filed from an earlier action in the same forum in which the same claims were being pursued. See Schwarz v. Meinberg, 761 F. 28 App’x 732, 735. 1 control of the plaintiff; and (3) the defendant must not be prejudiced by application of the 2 doctrine (which is normally not a factor since the defendant will have had notice of the first 3 action).” Hull v. Central Pathology Service Med. Clinic, 28 Cal. App. 4th 1328, 1336 (1994). 4 As discussed above, the claims raised in Johnson I and the claims raised in this action are 5 virtually identical and that both this action and Johnson I were filed in the same federal forum. 6 However, in Johnson I, the District Court granted summary judgment against Plaintiff and 7 dismissed the action, and the Ninth Circuit affirmed, because Plaintiff failed to exhaust the 8 administrative remedies applicable to his claims before he filed Johnson I and did not raise a 9 genuine dispute of material fact as to whether there was something that made the generally 10 available administrative remedies effectively unavailable to him. (ECF No. 23, at 27-28.) 11 Therefore, Plaintiff cannot satisfy the second element of the Bollinger rule because “the fact that 12 the plaintiff is left without a judicial forum for resolution of the” claims raised in the current 13 action is not “attributable to forces outside the control of the plaintiff[.]” Hull, 28 Cal. App. 4th 14 at 1336. Consequently, the Court finds that Plaintiff is not entitled to any equitable tolling 15 pursuant to the Bollinger rule. 16 In sum, Plaintiff is not entitled to any equitable tolling. Thus, the only tolling that 17 Plaintiff is entitled to is the two years of statutory tolling pursuant to California Code of Civil 18 Procedure § 352.1(a). However, even with the two years of statutory tolling, the two-year statute 19 of limitations applicable to Plaintiff’s § 1983 claims expired on January 29, 2018, four years after 20 Plaintiff’s claims accrued on January 29, 2014. Accordingly, since Plaintiff did not file this 21 action until October 26, 2018, Plaintiff’s § 1983 claims are time-barred. 22 D. Law of the Case 23 Finally, Plaintiff contends that it is law of the case that this action is timely filed because 24 the Ninth Circuit stated in the Johnson I memorandum opinion that: “We treat the judgment as a 25 dismissal without prejudice to Johnson refiling the action.” (ECF No. 23, at 28.) 26 Under the law of the case doctrine, “a court is generally precluded from reconsidering an 27 issue that has already been decided by the same court, or a higher court in the identical case.” 28 Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993). However, “[f]or the doctrine to apply, the 1 issue in question must have been decided either expressly or by necessary implication in the 2 previous disposition.” Id. 3 First, the law of the case doctrine is inapplicable here because the Ninth Circuit issued its 4 memorandum opinion in Plaintiff’s previous action, not this action. Second, even if the law of 5 the case doctrine was applicable here, the Ninth Circuit did not expressly, or implicitly, decide 6 that any future action that Plaintiff filed raising the claims that he first raised in Johnson I would 7 not be barred by the applicable statute of limitations. Instead, the Ninth Circuit’s statement that 8 the judgment in Johnson I was to be treated as a dismissal without prejudice to Johnson refiling 9 the action was a statement that, since Johnson I was not decided on the merits of Johnson’s 10 claims, but was decided on a procedural issue – whether Plaintiff had exhausted his 11 administrative remedies prior to suit, the judgment in Johnson I did not bar or preclude Plaintiff 12 from filing a new action raising the same claims so long as the refiled lawsuit was filed within the 13 applicable statute of limitations. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505- 14 06 (2001) (stating that a “dismissal without prejudice” is defined as “a dismissal that does not bar 15 the plaintiff from refiling the lawsuit within the applicable limitations period” (italics added and 16 citation and internal brackets omitted)). 17 Therefore, the Ninth Circuit’s statement in the Johnson I memorandum opinion is not law 18 of the case establishing that this action was filed within the statute of limitations applicable to 19 Johnson’s § 1983 claims. As discussed above, since this action was not filed within the 20 applicable statute of limitations, this action is time-barred. 21 E. Leave to Amend Would Be Futile 22 The only remaining issue is whether to allow Plaintiff leave to amend. “Under Federal 23 Rule of Civil Procedure 15(a), leave to amend shall be freely given when justice so requires. 24 However, the district court may exercise its discretion to deny leave to amend due to undue delay, 25 bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by 26 amendments previously allowed, undue prejudice to the opposing party …, and futility of 27 amendment.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010) (citations 28 and internal quotation marks and brackets omitted); see also Lopez v. Smith, 203 F.3d 1122, 1127 1 (9th Cir. 2000) (“[I]n dismissing for failure to state a claim under Rule 12(b)(6), a district court 2 should grant leave to amend even if no request to amend the pleading was made, unless it 3 determines that the pleading could not possibly be cured by the allegation of other facts.” (citation 4 and internal quotation marks omitted)). 5 In this case, the Court has determined that Plaintiff’s claims are barred by the applicable 6 statute of limitations. Since Plaintiff cannot plead any additional facts to cure these defects, it 7 would be futile to grant Plaintiff leave to amend his complaint. See Platt Elec. Supply, Inc. v. 8 EOFF Elec., Inc., 522 F.3d 1049, 1060 (9th Cir. 2008). 9 IV. Conclusion and Recommendations 10 Based on the foregoing, Plaintiff’s complaint fails to state a cognizable claim for relief 11 because all of Plaintiff’s claims are barred by the applicable statute of limitations. Since the 12 defects in his pleading are not capable of being cured through amendment, granting leave to 13 amend would be futile. Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). 14 Accordingly, it is HEREBY RECOMMENDED that: 15 1. Defendant Bejinez’s, Benavides’s, Deshazo’s, Espinoza’s, Hill’s, Hoggard’s, 16 Kennedy’s, Leon’s, Lopez’s, Luna’s, Newton’s, Salas’s, Santos’s, and Trinidad’s 17 filed a motion to dismiss, (ECF No. 19), be GRANTED WITHOUT LEAVE TO 18 AMEND; and 19 2. This action be dismissed, with prejudice, for failure to state a claim upon which 20 relief may be granted. 21 These findings and recommendations will be submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 23 (14) days after being served with these findings and recommendations, the parties may file 24 written objections with the court. The document should be captioned “Objections to Magistrate 25 /// 26 /// 27 /// 28 /// 1 Judge’s Findings and Recommendation.” The parties are advised that failure to file objections 2 within the specified time may result in the waiver of the “right to challenge the magistrate’s 3 factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 4 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 IT IS SO ORDERED. 6 7 Dated: March 27, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28