United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING
DISMISSAL OF ACTION (ECF No. 13)
Melvin Ward (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
This matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
3, 2019, the Magistrate Judge issued findings and a
recommendation recommending dismissal of this action as
time-barred and for failure to state a cognizable claim upon
which relief may be granted. (ECF No. 13.) Those findings and
recommendations were served on Plaintiff and contained notice
that any objections thereto were to be filed within fourteen
(14) days after service. (Id. at 7.) Plaintiff
timely filed objections on July 17, 2019. (ECF No. 14.)
respect to the Magistrate Judge's recommendation of
dismissal of this action as time-barred, Plaintiff argues in
his objections that he was in a state of mental crisis due to
this case, and that he tried to exhaust his appeals at both
the state and federal levels to no avail. Plaintiff contends
that he was under psychiatric care at the time of this case
and did not know how to defend himself at the time, had
stopped taking all medication until he became manic and had
to be put on forced medication. Plaintiff states that he is
just now feeling better about what to do with his situation.
(ECF No. 14, p. 5.)
Court finds this argument unpersuasive. Plaintiff essentially
argues that, due to his mental health, he was unable to
litigate this claim prior to filing a complaint in this
action. However, the Court takes judicial notice that
Plaintiff has filed four other actions, two as petitions for
habeas corpus relief and two as civil rights actions pursuant
to 42 U.S.C. § 1983, regarding the exact facts at issue
in this case. The Court notes in particular that the
earliest action was filed on August 21, 2013, well within the
applicable statute of limitations for the filing of a section
1983 complaint. Furthermore, Plaintiff's later section
1983 actions, including the instant case, were filed mere
weeks after the dismissal of each prior case regarding the
same facts at issue. Compare Ward v. Crawley
(dismissed on March 2, 2018) and Ward v. Lucas
(filed March 23, 2018 and dismissed December 18, 2018)
with (ECF No. 1) (filed January 2, 2019). It is
apparent to the Court that Plaintiff clearly understood his
situation prior to filing the instant action, despite any
mental health treatment he was receiving at the time, and has
repeatedly filed suit in this Court in an attempt to recover
on the same claims that have already been dismissed on
multiple occasions. Plaintiff has otherwise presented no
allegations to demonstrate that any equitable tolling should
apply to this action.
remaining objections regarding the sufficiency of evidence
used during his first and second RVR hearing are unavailing.
These objections merely repeat arguments fully addressed in
the findings and recommendations.
accordance with the provisions of 28 U.S.C. § 636
(b)(1)(C), this Court has conducted a de novo review
of the case, including Plaintiffs objections. None of
Plaintiff s objections provide a legal basis on which to
question the Magistrate Judge's findings and
recommendations. Having carefully reviewed the entire file,
the Court concludes that the Magistrate Judge's findings
and recommendations are supported by the record and by proper
IT IS HEREBY ORDERED that:
findings and recommendations issued on July 3, 2019, (ECF No.
13), are adopted in full;
action is dismissed, with prejudice, as time-barred and for
failure to state a cognizable claim upon which relief may be
Clerk of the Court is directed to close this case.
 The Court may properly take judicial
notice of court filings and other matters of public record.
Reyn's Pasta Bella, LLC v. Visa USA, LLC, 442
F.3d 741, 746 n.6 (9th Cir. 2006). The Court takes judicial
notice of the following United States District Court cases:
(1) Ward v. Duffy, No. 1:13-cv-01367-SKO (E.D. Cal.)
(habeas corpus petition filed August 21, 2013 and denied
September 14, 2015); (2) Ward v. Fox, No.
1:16-cv-00836-DAD-JLT (E.D. Cal.) (habeas corpus petition
filed June 16, 2016 and dismissed September 14, 2016 as a
successive petition); (3) Ward v. Crawley, No.
1:17-cv-01740-AWI-SAB (E.D. Cal.) (section 1983 action filed
December 22, 2017, and dismissed March 2, 2018 for failure to
state a cognizable claim for relief); ...