(PC) Johnson v. Frauenheim ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LACEDRIC WILLIAM JOHNSON, Case No. 1:18-cv-01477-AWI-BAM (PC) 12 Plaintiff, ORDER DECLING TO ADOPT FINDINGS AND RECOMMENDATIONS 13 v. (ECF No. 26) 14 FRAUENHEIM, et al., 15 Defendants. 16 17 Plaintiff LaCedric William Johnson (“Plaintiff”) is a state prisoner proceeding pro se and 18 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, against: (1) Defendants 19 Santos, Leon, Benavides, Hill, Salas, Luna, Lopez, Kennedy, Bejinez, and Trinidad for excessive 20 force; (2) Defendants Salas, Bejinez, Trinidad, and Deshazo for violation of Plaintiff’s First 21 Amendment right to free exercise of religion; (3) Defendants Deshazo, Bejinez, Trinidad, and 22 Benavides for unconstitutional conditions of confinement; (4) Defendants Benavides, Bejinez, 23 Deshazo, Hoggard, and Trinidad for deliberate indifference to serious medical needs; and 24 (5) Defendants Espinoza, Luna, and Newton for failure to intervene. This matter was referred to 25 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 26 On March 27, 2020, the assigned Magistrate Judge issued findings and recommendations 27 that Defendants’ motion to dismiss be granted on the ground that Plaintiff’s complaint fails to 28 state a cognizable claim for relief because all of Plaintiff’s claims are barred by the applicable 1 statute of limitations. (ECF No. 26.) The findings and recommendations were served on the 2 parties, and contained notice that any objections were to be filed within fourteen (14) days. (Id. at 3 24–25.) Following an extension of time, Plaintiff timely filed objections on May 5, 2020. (ECF 4 Nos. 28, 29.) Defendants filed a response to Plaintiff’s objections, together with a request for 5 judicial notice, on May 11, 2020. (ECF Nos. 30, 31.) 6 In accordance with 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of 7 this case. Having carefully reviewed the entire file, including Plaintiff’s objections and 8 Defendants’ response, the Court respectfully declines to adopt the Magistrate Judge’s Findings 9 and Recommendations. Plaintiff’s claims are timely when both statutory tolling and equitable 10 tolling are applied to his case. 11 Plaintiff’s Section 1983 claim has a two year statute of limitations. Jones 12 v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (borrowing California’s personal injury state of 13 limitations period). Plaintiff’s case accrued on January 29, 2014. He did not file the present suit 14 until October 26, 2018, approximately four years and nine months after the claim’s accrual. Cal. 15 Civ. Proc. Code § 352.1(a) states that “If a person entitled to bring an action…is, at the time the 16 cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a 17 criminal court for a term less than for life, the time of that disability is not a part of the time 18 limited for the commencement of the action, not to exceed two years.” Plaintiff has been 19 imprisoned since 2014. Thus, he is entitled to two years of statutory tolling under Section 352.1. 20 Additionally, “Where exhaustion of an administrative remedy is mandatory prior to filing suit, 21 equitable tolling is automatic.” McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 22 101 (Cal. 2008). Plaintiff was in the process of pursuing administrative remedies required by the 23 PLRA between January 29, 2014 and August 26, 2015. Thus, he is entitled to approximately 24 nineteen months of equitable tolling since he could not file the present suit until the 25 administrative remedies were exhausted. 26 Whether the statutory tolling and equitable tolling should run consecutively or 27 concurrently is a question that has not been firmly settled. If they run consecutively, then 28 Plaintiff’s claims were timely filed. If they run concurrently, his claims are time barred. As the 4.4L0°UVTV ETE EUAN ROPAIVE RYUUUEIOCPI Ve FR VOreEUWeEY VU □□ 1 | Magistrate Judge correctly pointed out, this is an issue that various courts have divided on. 2 | Compare Stevenson v. Holland, 2017 U.S. Dist. LEXIS 107170, *15 (E.D. Cal. July 11, 2017) 3 | (two periods run consecutively) and Carranza v. Lewis, 2017 U.S. Dist. LEXIS 38293, *51 (N.D. 4 | Cal. Mar. 16, 2017) (same) with Wilkins y. Vancott, 2018 U.S. Dist. LEXIS 133049, *12 (N.D. 5 | Cal. Aug. 7, 2018) (two periods run concurrently) and Lopez v. Schwarzenegger, 2012 U.S. Dist. 6 | LEXIS 2957, *16 (E.D. Cal. Jan. 9, 2012) (same). Following the logic of Stevenson v. Holland, 7 | this Court concludes that the tolling periods apply consecutively. 8 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The Court declines to adopt the findings and recommendations issued on March 27, 11 2020, (ECF No. 26); 12 2. Defendants’ motion to dismiss, (ECF No. 19), is denied. 13 4 IT IS SO ORDERED. 15 | Dated: _ August 20, 2020 — 7 : 7 Cb bod — SENIOR DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28