(PC) Bierman v. Nurse 1 ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES BIERMAN, Case No. 1:20-cv-01777-HBK (PC) 12 Plaintiff, CLERK TO CLOSE CASE BASED UPON PLAINTIFF’S VOLUNTARY DISMISSAL 13 v. UNDER FED. R. CIV. P. 41 (a)(1)(A)(i) 14 NURSE 1, (Doc. No. 28) 15 Defendant. 16 17 On October 5, 2023, the Plaintiff filed a construed notice of voluntary dismissal. (Doc. 18 No. 28). The notice follows the court’s September 19, 2023, order directing Plaintiff to either 19 provide an updated address for the sole defendant or show cause why the court should not dismiss 20 the sole defendant under Federal Rule Civil Procedure 4(m). (Doc. No. 27). In his signed notice, 21 Plaintiff states he wishes to voluntarily dismiss this action without prejudice until he can “gather 22 the necessary information” to prosecute this case. (Doc. No. 28 at 1). Because no defendant has 23 been served and no answer nor motion for summary judgment has been filed, Plaintiff may 24 voluntarily dismiss this action by operation of law without further order from the Court. Fed. R. 25 Civ. P. 41(a)(1)(A)(i). Thus, the Court construes the notice as filed under Federal Rule of Civil 26 Procedure 41(a). 27 Because Plaintiff is voluntarily dismissing this action without prejudice, once Plaintiff 28 identifies the “necessary information” he may refile a new action. Plaintiff is cautioned he must een ene eee EE IIE OS INE IIE IE OO 1 | file his new action before the expiration of the applicable statute of limitations.’ 2 ACCORDINGLY: 3 The Clerk of Court is directed to vacate all deadlines and CLOSE this case to reflect 4 | Plaintiff's Notice of Voluntary Dismissal without prejudice consistent with Fed. R. Civ. P. S | 41d )(AD@). 6 GK, Last Dated: _ October 6, 2023 hao lh. Aare4 = 8 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 27 ' The statute of limitations for section 1983 actions “is the personal injury statute of limitations of the state in which the cause of action arose.” Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031, 1041 (9th 23 | Cir. 2011) (citations omitted). In California, the statute of limitations for personal injury claims is two years. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (citing Cal. Civ. Proc. Code § 335.1). Thus, 24 | the statute of limitations for section 1983 actions arising in California is two years. Jackson v. Barnes, 749 F.3d 755, 761 (9th Cir. 2014) (citation omitted). In addition to the statute of limitations, federal courts 25 | apply “the forum state's law regarding tolling” for section 1983 actions. Jones, 393 F.3d at 927 (citation omitted). In California, the statute of limitations is tolled for a maximum of two years if and while a 26 | plaintiff is imprisoned, unless the plaintiff is serving a sentence of life without the possibility of parole. Cal. Civ. Proc. Code § 352.1(a); Brooks v. Mercy Hosp., 1 Cal. App. 5th 1, 7 (Cal. Ct. App. 27 || 2016) (“only those sentenced to life without possibility of parole should be excluded from the tolling provision” of section 352.1) (citations omitted). Thus, unless Plaintiff is serving a life sentence, he must 28 | file his action within four years of the date on when the action accrued.