(PC) Hudson v. Pfeiffer ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARRYL HUDSON, Case No. 1:19-cv-954-JLT-HBK 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. (Docs. 20, 32) 14 C. PFEIFFER; R. COX; J. DIAZ; D. BALKIND; R. NUCKLES; A. SOTELO; 15 R. RODRIQUEZ; J. FERNANDEZ; J. FIGUEROA; V. ESCOBEDO, 16 Defendant. 17 18 The magistrate judge issued findings and recommendations recommending that the 19 Defendants’ motion to dismiss be granted because the action is barred by the statute of 20 limitations. (See generally Doc. 32.) Plaintiff timely filed his objections. 21 In the objections, Plaintiff acknowledges that the magistrate judge found the complaint 22 was filed in excess of the two-year statute of limitations by two months and twenty-nine days, but 23 argues that the magistrate judge failed to consider the “imminent danger and excessive risk of 24 harm by defendants[’] retaliations, threats, coercions, intimidation and fear of death.” (Id. at 1.) 25 Plaintiff states he was hospitalized and had no access to the law library from June 30, 2016 26 through April 10, 2019. (Id. at 2.) Additionally, Plaintiff attaches an inmate’s declaration in 27 support of his objections. (Id. at 4–5.) Inmate Calloway’s declaration attests to helping Plaintiff 28 litigate his case when he arrived at Kern Valley on April 10, 2019. (Id. at 4.) Inmate Calloway 1 alleges he faced retaliation by unidentified officers at Kern Valley because of helping Plaintiff 2 litigate his case and was told to “mind his own business.” (Id. at 4–5.) Inmate Calloway further 3 attests that because of the retaliation, he was delayed and unable to help Plaintiff litigate his case 4 until July 11, 2019. (Id. at 5.) 5 The arguments Plaintiff raises in his objections were not raised in his opposition to the 6 Defendants’ motion to dismiss. (See Doc. 24.) Though the court has discretion to consider 7 arguments raised for the first time in objections to a magistrate judge’s findings and 8 recommendations, (Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002) (citations omitted), it 9 declines to do so here. In his opposition to the motion to dismiss, he did not even hint at the 10 grounds for equitable tolling raised in his objections. (See Doc. 24.) Instead, Plaintiff’s 11 opposition argued that Defendants’ motion was frivolous because the statute of limitation was 12 four years, not two. (Doc. 24 at 2.) Additionally, Plaintiff argued that the accrual date of his 13 claim was the date on which he finished exhausting his administrative remedies, not the date the 14 excessive force occurred. (See generally id.) 15 As noted in the findings and recommendations, Plaintiff’s claim accrued on June 30, 16 2016, when the use of force incident occurred. (Doc. 32 at 7-8.) The magistrate judge properly 17 rejected Plaintiff’s argument that the accrual date is the date Plaintiff finished exhausting his 18 administrative remedies. (Id.) In addition, because Plaintiff is serving a life-sentence in the 19 California Department of Corrections, the magistrate judge properly concluded that a two-year 20 statute of limitation applies. (Id. at 8.) 21 According to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this 22 case. Having carefully reviewed the entire file, the Court finds the Findings and 23 Recommendations to be supported by the record and by proper analysis. Thus, the Court 24 ORDERS: 25 1. The findings and recommendations issued December 17, 2021, (Doc. 32), are 26 ADOPTED IN FULL. 27 2. Defendant’s motion to dismiss (Doc. 20) is GRANTED. 28 /// 1 3. The Clerk of Court is directed to CLOSE THIS CASE. 2 3 IT IS SO ORDERED. | Dated: _ October 11, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28