1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 Case No. CV 22-5479 CBM (MRW) 13 | GREGORY FRANKLIN, 14 Plaintiff, ORDER DISMISSING ACTION

WITH PREJUDICE

15 Vv. 16 | R. AGUIRRE, 17 Defendant. 18 19 The Court dismisses this action with prejudice as untimely. 90 kee 21 1. This is a pro se prisoner civil rights action. Plaintiff an 99 | inmate at the state prison in Lancaster. Over the years, he has attempted 93 | to litigate numerous federal civil actions against the staff of the Lancaster 94 | prison and a local Los Angeles jail.! 25 26 27 | commenced in August 2022, See also Nos. CV 22-5478 and 22-5837 CBM 28 etwoal or Cal he Court previously dismissed the other two actions on

1 2. The complaint in this action alleges that a Lancaster prison 2 guard gave Plaintiff a detrimental housing assignment and a disciplinary 3 charge in retaliation for Plaintiff’s refusal to withdraw a grievance against 4 the guard. Plaintiff contends that the guard’s conduct violated Plaintiff’s 5 civil rights in violation of 42 U.S.C. § 1983. By this lawsuit, Plaintiff seeks 6 damages of $300,000 in pain and suffering. (Docket # 1.) 7 3. Pursuant to 28 U.S.C. §§ 1915(e) and 1915A, Magistrate 8 Judge Wilner screened the original complaint in this action. (Docket # 8.) 9 Judge Wilner concluded that Plaintiff stated a plausible cause of action of 10 illegally retaliation under the First Amendment against the named guard. 11 Judge Wilner authorized the service of the complaint on Defendant 12 Aguirre. (Docket # 9.) 13 4. The California Attorney General appeared in the action on 14 behalf of the guard. (Docket # 14.) The Attorney General moved to dismiss 15 the action as untimely. (Docket # 17.) The gist of the defense’s argument 16 is that the events underlying Plaintiff’s civil complaint occurred in January 17 2018. However, Plaintiff did not mail his complaint for filing in this 18 district until July 2022. The Attorney General contends that the civil 19 action is untimely under the relevant two-year statute of limitations. 20 Further, Plaintiff is not entitled to tolling of the limitations period 21 (whether by operation of state law or equitable principles) sufficient to 22 make the action timely. (Docket # 17, 24.) 23 5. Plaintiff opposed the motion. (Docket # 22.) His opposition 24 centers on the existence of other lawsuits (Nos. CV 19-6255, 21-91, and 21- 25 3551 CBM (KK) (C.D. Cal.) that he filed against Defendant Aguirre. 26 Plaintiff voluntarily dismissed those actions. Plaintiff appears to claim 27 28 1 that the filing and dismissal of the earlier cases makes the current action 2 timely. 3 * * * 4 6. Federal civil rights claims are subject to the forum state’s 5 statute of limitations for personal injury torts. Wilson v. Garcia, 471 U.S. 6 261, 279-80 (1985); Marks v. Parra, 785 F.3d 1419 (9th Cir. 7 1986); Canatella v. Van de Kamp, 486 F.3d 1128, 1132 (9th Cir. 8 2007). According to California Code of Civil Procedure § 335.1, the 9 limitations period for such an action is two years. Maldonado v. Harris, 10 370 F.3d 945, 954-55 (9th Cir. 2004); Jackson v. Barnes, 749 F.3d 755, 761 11 (9th Cir. 2014) (“the applicable statute of limitations under California law 12 is two years” for Section 1983 claim). 13 7. State law further extends the statute of limitations for an 14 additional period of up to two years for time spent “imprisoned on a 15 criminal charge, or in execution under the sentence of a criminal 16 court.” Cal. C. Civ. Pro. § 352.1. 17 8. However, the statute carves out an exception to the two-year 18 extension. A prisoner is entitled to the additional tolling of the limitations 19 period only if she or he has been sentenced “for a term less than for life.” 20 Id.; Brownlee v. Burnes, 2023 WL 4306249 at *1 (E.D. Cal. 2023) (same). 21 The Ninth Circuit agrees with state appellate courts that prisoners 22 “sentenced to life without possibility of parole should be excluded from the 23 tolling provision” under Section 352.1. Brown v. County of Los Angeles, 24 830 F. App’x 231, 232 (9th Cir. 2020) (collecting cases). 25 * * * 26 9. In the present action, Plaintiff filed this civil action in 2022. 27 That’s more than four years after the underlying events occurred in 2018. 28 1 It is undisputed that he is currently serving a prison term of life without 2 parole. (Docket # 17-2 at 2 (affidavit from CDCR).) As a result, the statute 3 of limitations for Plaintiff’s claim expired in 2020. Plaintiff is not entitled 4 to a further extension of that period under state law. Cal. C. Civ. P. 352.1. 5 10. In response, Plaintiff argues that his previous – but abandoned 6 – federal actions against the Lancaster prison guards somehow entitle him 7 to tolling the operation of the statute of limitations. However, ample 8 authority supports the proposition that the voluntary dismissal of an 9 earlier lawsuit “is not an event to which equitable tolling applies.” Johnson 10 v. Riverside Healthcare System, 534 F.3d 1116, 1129 (9th Cir. 2008) 11 (collecting cases); Estate of Stern v. Tuscan Retreat, Inc., 725 F. App’x 518, 12 524 (9th Cir. 2018) (same; “Ms. Stern’s state suit was voluntarily 13 dismissed, and therefore the limitations periods continued to run.”). 14 11. Plaintiff’s subjective belief that the dismissal of his earlier 15 actions several years ago would allow him to refile this case is irrelevant to 16 the Court’s analysis. (Docket # 22 at 9.) Plaintiff’s remaining contentions 17 to avoid dismissal (his access to law libraries, the adequacy of this Court’s 18 notice of dismissal, his pro se status, etc.) are unavailing and cannot save 19 this untimely action. 20 * * * 21 12. A pro se litigant is ordinarily entitled to amend a defective 22 complaint in an effort to state a proper claim for relief. Lopez v. Smith, 203 23 F.3d 1122 (9th Cir. 2000). However, this rule does not apply when “the 24 basic facts are alleged and have been analyzed” from a litigant’s pleadings 25 and it is apparent that that Plaintiff “cannot cure the flaws” in his claims. 26 Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002). 27 28 1 13. Plaintiff's 2022 lawsuit is patently time-barred. He cannot 2 | plausibly “cure the flaws” of his untimely claim against Defendant Aguirre. 3 | Dismissal without leave to amend is appropriate. Lipton, 284 F.3d at 1039. 4 14. Therefore, the present action is hereby DISMISSED with | prejudice. 6 IT IS SO ORDERED 7 | Dated: JULY 12, 2023 9 HON. CONSUELO B. MARSHALL 10 SENIOR U.S. DISTRICT JUDGE 11 12 Presented by: 13 LU [ | 14 15 | HON. MICHAEL R. WILNER 16 UNITED STATES MAGISTRATE JUDGE

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