United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. After dismissal of the
original complaint pursuant to 28 U.S.C. § 1915A (ECF
No. 6), plaintiff filed an amended complaint, which the court
mandates that district courts engage in a preliminary
screening of cases in which prisoners seek redress from a
governmental entity or officer or employee of a governmental
entity. 28 U.S.C. § 1915A(a). The court must identify
cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint “is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, ” or “seeks monetary relief from a
defendant who is immune from such relief.” Id.
court analyzed plaintiff's original complaint pursuant to
§ 1915A as follows:
Plaintiff brings this action against ten defendants. He
alleges that, in July 2009, he reported sexual advances made
by his cell-mate (“Raye”) to defendant Zapata.
ECF No. 1 at 5. Specifically, he told Zapata that Raye had
slapped his buttocks while he was in bed. Id. He
asked Zapata to re-assign him to a different cell because he
feared being sexually assaulted. Id. Zapata
allegedly laughed at plaintiff's request and,
subsequently, “thwarted [plaintiff's] verbal
complaint” by telling him to “man the fuck up and
deal with it like a man.” Id. Plaintiff made
the same request of other correctional officers (defendants
Treichel and Daniels) and met with similar rejections.
Id. at 5-6.
Several days after these complaints, plaintiff engaged in a
physical altercation with Raye that left him with a fractured
eye-socket, facial scarring, and various abrasions.
Id. at 6-7. In the aftermath of this altercation,
plaintiff claims that defendants Daniels, Zapata, Treichel,
Ikemoto, Smith covered up both the nature of this assault and
the fact that plaintiff had previously warned them of its
possibility by issuing a false rules violation report.
Id. at 7. . . . .
As an initial matter, any failure to protect claim (to the
extent plaintiff seeks to raise one) based on the 2009
assault appears to be definitively barred by the statute of
limitations. See Jackson v. Fong, 870 F.3d 928, 936
(9th Cir. 2017) (“The statute of limitations relevant
to [appellant's] § 1983 claims was California's
two-year limit for personal injuries.”); see also
Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001)
(“Under federal law, ‘a claim accrues when the
plaintiff knows or has reason to know of the injury which is
the basis of the action.'”). Even allowing for the
two year tolling of the statute of limitation under
California law for state prisoners (Section 352.1 of the
California Code of Civil procedure), his claims related to
this eight-year old incident are well past the statute of
ECF No. 6 at 3-4. In the amended complaint, plaintiff states
that he was “out to court” at the San Mateo
County Jail from December of 2009 through February of 2013.
ECF No. 16 at 9. He claims that he asked for his paperwork on
March 5, 2013 and was told that it had been
“removed.” Id. To the extent plaintiff
supplies these allegations in an effort to show that the
statute of limitations should be tolled, they are unavailing.
Id. at 10. Plaintiff was aware of his injuries in
2009, which triggered the statute of limitations. Plaintiff
does not specify what “paperwork” was missing,
why he did not request it prior to 2013, or why access to it
prevented him from timely filing suit. Moreover, even if the
four-year limitations period were tolled to March of 2013,
when plaintiff learned that the paperwork had been
“removed, ” his January 10, 2018 complaint would
still be untimely by nearly a year. Thus, plaintiffs amended
complaint must also be dismissed as barred by the statute of
court has afforded plaintiff a chance to amend his complaint,
yet he is no closer to stating a cognizable claim.
Consequently, it declines to offer him further opportunity to
amend. See McGlinchy v. Shell Chemical Co., 845 F.2d
802, 809-10 (9th Cir. 1988) (“Repeated failure to cure
deficiencies by amendments previously allowed is another
valid reason for a district court to deny a party leave to
it is hereby ORDERED that the Clerk of Court shall randomly
assign a United States District Judge to this case.
it is RECOMMENDED that plaintiffs amended complaint (ECF No.
16) be DISMISSED without leave to amend as ...