United States District Court, S.D. California
ORDER DENYING MOTION FOR RECONSIDERATION [ECF NO.
Ann Bencivengo, Judge
March 6, 2019, Plaintiff, David Florence, an inmate currently
incarcerated at North Kern State Prison (“NKSP”)
located in Delano, California filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983 (ECF No. 1). In addition,
Plaintiff filed a certified copy of his inmate trust account
statement which the Court liberally construed as a Motion to
Proceed In Forma Pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a) (ECF No. 2).
April 22, 2019, the Court GRANTED Plaintiff's Motion to
Proceed IFP and sua sponte DISMISSED his entire Complaint for
failing to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A.
(ECF No. 3.) In addition, the Court found that
Plaintiff's Complaint, which was nearly one hundred and
fifty (150) pages and named forty-five (45) defendants
violated Rule 8 of the Federal Rules of Civil Procedure.
(Id. at 4-5.) Plaintiff was granted leave to file an
amended pleading in order to correct the deficiencies of
pleading identified in the Court's Order. (Id.
at 9.) On June 18, 2019, Plaintiff filed his First Amended
Complaint (“FAC”). (ECF No. 5.)
the Court found that Plaintiff failed to correct any of the
deficiencies noted in the Court's previous Order and all
the claims in his FAC were barred by the applicable statute
of limitations. (ECF No. 6 at 3-6.) Plaintiff has now filed a
“Motion for Reconsideration” of the Court's
July 12, 2019 Order. (ECF No. 9.)
Plaintiff's Motion for Reconsideration
Motion, Plaintiff argues that he is entitled to tolling of
his claims “while he exhausts his administrative
remedies.” Pl.'s Mtn. at 5; citing Brown v.
Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (holding that
an inmate is entitled to the tolling of the applicable
statute of limitations while they are exhausting their
administrative remedies as required by 42 U.S.C. §
1997e(a)). In addition, while Plaintiff acknowledges that he
is serving a life sentence without the possibility of parole,
California courts have liberally construed California's
statutory law allowing for an additional two years of tolling
only for inmates who are serving a sentence of a “term
for less than life.” Pl.'s Mtn. at 9; citing
Cal.Civ.Proc. Code § 352.1.
Standard of Review
Rule 60, a motion for “relief from a final judgment,
order or proceeding” may be filed within a
“reasonable time, ” but usually must be filed
“no more than a year after the entry of the judgment or
order or the date of the proceeding.” Fed.R.Civ.P.
60(c)(1). / / / Rule 60(b) provides for reconsideration where
one or more of the following is shown: (1) mistake,
inadvertence, surprise or excusable neglect; (2) newly
discovered evidence which by due diligence could not have
been discovered before the court's decision; (3) fraud by
the adverse party; (4) the judgment is void; (5) the judgment
has been satisfied; (6) any other reason justifying relief.
Fed.R.Civ.P. 60(b); School Dist. 1J v. ACandS Inc.,
5 F.3d 1255, 1263 (9th Cir. 1993).
face of Plaintiff's Complaint and FAC, he clearly
indicates that the events giving rise to his claims occurred
in 2013 and up to September of 2014. See Compl. at
1; FAC at 1. Plaintiff filed this action on March 6, 2019.
See Compl. at 1. Thus, he filed his action
approximately four and one-half years after the alleged
constitutional violations occurred.
Court informed Plaintiff in both its April 22, 2019 and July
12, 2019 Orders, because section 1983 contains no specific
statute of limitation, federal courts apply the forum
state's statute of limitations for personal injury
actions. Jones v. Blanas, 393 F.3d 918, 927 (9th
Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954
(9th Cir. 2004); Fink v. Shedler, 192 F.3d 911, 914
(9th Cir. 1999).
law allows for a two year statute of limitations. Cal. Civ.
Proc. Code § 335.1. In addition, as stated above,
inmates serving a term of less than life receive an
additional two years of statutory tolling. Cal. Civ. Proc.
Code § 352.1(a); Johnson v. California, 207
F.3d 650, 654 (9th Cir. 2000), overruled on other
grounds, 543 U.S. 499 (2005). Plaintiff acknowledges
that he is serving a sentence of life without the possibility
of parole. Pl.'s Mtn. at 4. However, even if the Court
were to allow Plaintiff the extra two years of statutory
tolling, his claims would still be untimely by a period of at
least six months.
also argues, correctly, that he is entitled to tolling for
the duration of time that he took the steps to properly
exhaust his administrative remedies. Pl.'s Mtn. at 5;
citing Valoff, 422 F.3d at 943. However, Plaintiff
offers no plausible factual allegations regarding his
attempts to exhaust his administrative remedies. Moreover, he
does not attach any exhibits to his Complaint, FAC, or his
current Motion that would document his attempts to ...