United States District Court, C.D. California
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HONORABLE DALE S. FISCHER UNITED STATES DISTRICT JUDGE
November 28, 2016, the United States Magistrate Judge issued
a Report and Recommendation, recommending that judgment be
entered dismissing this action with prejudice. On February 3,
2017, plaintiff filed his “Objection to the Report and
Recommendation and Request for Leave to Amend”
(“Objs.”; ECF No. 18), along with a separate
“Request Leave to Amend” and a proposed Second
Amended Complaint (ECF No. 17).
Objections, plaintiff attempts to circumvent the dismissal of
his Second Case raising the same claims that he raises in
this action. As plaintiff states in his conclusion to the
Objections, he is attempting to show “that the Second
Case was improperly dismissed.” (Objs. at 26.)
Plaintiff argues that res judicata does not apply because he
did not have a “fair and full opportunity” to
litigate the Second Case, but this contention is based on his
argument that the dismissal was “improper”
because the claims should not have been found to be untimely,
and he was not given an opportunity to amend the pleading to
show that they were timely. (Objs. at 6, 9-11.) The Second
Case, however, was dismissed as untimely, the Ninth Circuit
affirmed the dismissal, and plaintiff's subsequent motion
to reopen the case based on an alleged erroneous ruling of
law was rejected. (See R&R at 3.) Plaintiff
cannot now argue in this action that the dismissal of his
earlier case was incorrect. Nothing in the Objections alters
the finding that res judicata bars plaintiff from raising his
claims of excessive force during his arrest and the failure
to provide medical attention immediately following the
arrest. (See R&R at 8.)
plaintiff is mistaken in stating that the R&R found that
“the civil rights claims that the plaintiff raised in
these three actions filed in this court did not pertain to
criminal charges in Superior Court.” (Objs. at 10.) The
portion of the R&R that plaintiff cites rejected
plaintiff's contention that he was entitled to tolling
pursuant to Cal. Gov't Code § 945.3 for the
pendency of his federal civil rights cases.
(See R&R at 8-9.) Plaintiff now argues in his
Objections that he should be entitled to tolling pursuant to
Cal. Gov't Code § 945.3 from the time of his arrest
on January 6, 2006, through the “pending charges in
Superior Court.” (Objs. at 10.) But this argument is
merely another attempt to overturn the dismissal of the
Second Case as untimely, which plaintiff cannot do in this
plaintiff's argument that he should be entitled to
equitable tolling because he suffered an “unjust
technical forfeiture” is not persuasive. Plaintiff
cites Jones v. Blanas, 393 F.3d 918, 928 (9th Cir.
2004) (see Objs. at 13-14), but this case pertains
to statutory tolling language that limited tolling for the
disability of imprisonment to individuals imprisoned on
criminal charges, excluding civil detainees. Because the
reasons for the statutory tolling provision for incarceration
applied equally to civil detainees, the Ninth Circuit held
that a civil detainee should be entitled to the benefit of
tolling for imprisonment despite being excluded by the
language of the statute. Jones, 393 F.3d at 928-29.
Here, plaintiff's argument for equitable tolling is
premised on the allegedly “improper” dismissal of
the Second Case, which is not similar in any respect to the
inequitable application of a statute to different classes of
plaintiff appears to be arguing that he is pleading
“new or additional facts” in this action that he
should have been allowed to add to the Second Case. (Objs. at
15-16.) But Plaintiff does not allege any new facts. He
merely sets forth his legal arguments that he is entitled to
tolling under Cal. Gov't Code § 945.3 and other
state law provisions.
the R&R found that, to the extent that plaintiff is
raising claims for inadequate medical care
subsequent to his arrest that he did not
raise in his Second Case, Cal. Gov't Code § 945.3 is
inapplicable to any such claims because the claims do not
pertain to the criminal charges against plaintiff.
(See R&R at 9; Objs. at 7, 19.) Plaintiff does
not cite any case law to contradict this finding.
the proposed Second Amended Complaint includes a section
entitled “Facts Supporting Timeliness” (ECF No.
17-1 at 8-9) that omits his earlier filed federal actions.
Plaintiff argues in the proposed pleading that the claims he
raises here are timely because he is entitled to tolling
under Cal. Gov't Code § 945.3. Plaintiff's
proposed amendments cannot alter the fact that his claims are
barred by res judicata, or that the claims pertaining to
plaintiff's subsequent medical care are untimely.
Accordingly, leave to amend is futile.
to 28 U.S.C. § 636, the Court has reviewed the First
Amended Complaint, the other records on file, the Magistrate
Judge's Report and Recommendation, plaintiff's
Objections to the Report and Recommendation, and his Request
to file a Second Amended Complaint. The Court has engaged in
a de novo review of those portions of the Report and
Recommendation to which objections have been made. The Court
accepts the recommendations of the Magistrate Judge.
IT IS ORDERED:
Report and ...