United States District Court, N.D. California
EDWARD V. RAY, Plaintiff,
A. LEAL, et al., Defendants.
ORDER DENYING MOTION TO VACATE ORDER GRANTING SUMMARY
GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE
a closed civil rights matter. Summary judgment was granted in
favor of Defendants, and judgment entered on March 31, 2015.
Dkts. 57, 58. On January 28, 2016, the Ninth Circuit Court of
Appeals affirmed this Court’s ruling. Dkt. 66. On April
26, 2016, the Ninth Circuit denied Petitioner’s
petition for panel rehearing. Dkt. 69. The mandate issued on
May 6, 2016. Dkt. 70.
has filed a motion to vacate the order granting summary
judgment for Defendants. Dkt. 67. Plaintiff again claims that
the Court “failed and/or refused to afford [him]
‘equitable tolling’, with regards to the letter
that Plaintiff mailed to the then Mayor of the City of
Oakland, Ron Dellums.” Id. at 2. However, the
argument Plaintiff makes in his motion is not new. The Court
has already considered Plaintiff’s argument, and even
after it found that he was entitled to an additional 418 days
of equitable tolling to account for all of his attempts to
obtain relief outside of the courts (including his
aforementioned letter to former Mayor Dellums), his complaint
was still untimely by 7 days. See Dkt. 57 10-14. The
Court finds unavailing Plaintiff’s argument that he is
entitled to further equitable tolling during the
time frame that Plaintiff failed to make “any further
attempts to acquire a response from the [former]
mayor’s office or from the [Oakland Citizens’
Police Review Board (“CPRB”)] about his second
CPRB complaint.” See Dkt. 67 at 2 (brackets
added). Plaintiff’s argument fails because he is
not entitled to equitable tolling during periods of
inaction. Under California law, equitable tolling
“‘reliev[es] plaintiff from the bar of a
limitations statute when, possessing several legal remedies
he, reasonably and in good faith, pursues one
designed to lessen the extent of his injuries or
damage.’” Cervantes v. City of San
Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (quoting
Addison v. State of California, 21 Cal.3d 313, 317
(1978)) (emphasis added). Here, the Court noted the time
frames Plaintiff took no action, which are outlined in the
8/27/2006 - 7/26/2007:
Pursuing administrative filings for 333 days.
7/27/2007 - 4/20/2009:
NO ACTION for 633 days.
4/21/2009 - 7/15/2009:
Pursuing administrative filings for 85 days.
7/16/2009 - 10/25/2011:
NO ACTION for 831 days.
Constructive filing date of federal complaint.
Dkt. 57 at 11. The Court noted the specific time frame
Plaintiff took no action and failed to pursue the letter he
sent to former Mayor Dellums, stating as follows:
After sending the July 15, 2009 letter to Mayor Dellums,
Plaintiff took no action for an additional 831 days until
October 26, 2001, when he constructively filed his complaint
in this Court. Therefore, even amidst pursuing his
administrative filings, the record shows that Plaintiff
arguably took no action, i.e., submits no evidence that he
pursued any other administrative filings during this time,
for a total of 1464 days (633 days plus 831 days).
Id. at 11-12. Prior to the its finding that
Plaintiff was entitled to equitable tolling, the Court had
determined that his complaint was already untimely by more
than two years, stating:
Despite the fact that Plaintiff was allotted four years to
file his excessive force claim relating to his arrest, he
failed to do so until October 26, 2011-almost a year and two
months after the two-year statute of limitations expired.
Id. at 9. As mentioned above, the Court granted
Plaintiff an additional 418 days (333 days plus 85 days) of
equitable tolling during the time frame he pursued his
administrative filings. Id. at 14. However,
“despite liberally granting him equitable
tolling during the time he pursued his administrative
filings, ” the complaint was still untimely by 7 days.
Id. at 13 (emphasis in original). The Court did not
grant Plaintiff equitable tolling during the 1464-day time
frame of inaction because Plaintiff did not act
reasonably or in good faith to pursue his
administrative filings. See Cervantes, 5 F.3d at
the Ninth Circuit reviewed the action de novo and affirmed
this Court’s ruling. Dkt. 66 at 1-2. The Ninth Circuit
specifically stated that the “[d]ismissal of
Ray’s action was proper because, even with the benefit
of statutory and equitable tolling, Ray failed to file his
action within the applicable statute of limitations.”
Id. at 2. Therefore, Plaintiff is not entitled to
relief from the judgment under any subsection of Federal Rule
of 60(b). Accordingly, Plaintiffs motion to vacate the
judgment is DENIED. Dkt. 67.
further filings will be accepted in this case file as this
particular action is closed.