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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 ROBERTO JOSE COTA, ) Case No. 8:21-CV-01774-MWF-JDE ) 12 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY ) 13 v. ) CASE SHOULD NOT BE ) DISMISSED 14 SANTA ANA POLICE ) DEPARTMENT, et al., ) 15 Defendants. ) )

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17 I. 18 INTRODUCTION 19 On October 25, 2021, Plaintiff Roberto Jose Cota (“Plaintiff”), a pretrial 20 detainee at Orange County Jail, proceeding pro se and seeking to proceed in 21 forma pauperis (“IFP”), filed a Complaint under 42 U.S.C. § 1983 (“Section 22 1983” or “§ 1983”) against Defendants Santa Ana Police Department 23 (“SAPD”), David Valentin, Gallardo, John Doe, and Gus Morroyoqui. Dkt. 1 24 (“Complaint”); Dkt. 2 (“IFP Request”). 25 Because Plaintiff, a detainee, seeks redress in the Complaint against 26 government officials and entities, and because Plaintiff seeks leave to proceed 27 IFP, under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the Court must, as soon as 28 practicable, review and dismiss the Complaint if it is frivolous or malicious, 1 fails to state a claim on which relief may be granted, or seeks monetary 2 damages from a defendant immune from such relief. 3 II. 4 SUMMARY OF PLAINTIFF’S ALLEGATIONS 5 On May 28, 2018, Plaintiff, a tow-truck operator, was in a parking lot in 6 Santa Ana, California when he heard what he believed to be gun shots coming 7 from a nearby parking lot. Complaint ¶¶ 11-13. Plaintiff drove to the nearby 8 parking lot and observed a group of bystanders surrounding an injured victim. 9 Id. ¶14. Plaintiff then began rendering aid to the victim until the Fire 10 Department arrived a few minutes later, at which point Plaintiff returned to his 11 parked vehicle. Id. ¶¶ 15-16. Shortly thereafter, officers from the SAPD arrived 12 at the parking lot and began conducting witness interviews. Id. ¶ 17. Plaintiff 13 approached Defendant Gallardo, an SAPD officer, and notified him that 14 Plaintiff’s vehicle had a dash camera that may have captured relevant footage. 15 Id. ¶ 18. Defendant Gallardo indicated to Plaintiff he would be interested in 16 interviewing Plaintiff, and asked Plaintiff to “wait for a few minutes,” which 17 Plaintiff obliged. Id. Defendant Gallardo briefly interviewed Plaintiff, and at 18 10:15 p.m., before completing the interview, instructed Plaintiff to move his 19 vehicle and to turn it off as to not waste gas. Id. ¶ 20. Plaintiff alleges he felt 20 “compelled” to comply with Defendant Gallardo’s orders and accordingly 21 moved his vehicle and believed he “couldn’t leave.” Id. ¶ 21. Plaintiff claims 22 Defendant Gallardo never told Plaintiff he was permitted to leave and never 23 provided Plaintiff with an explanation for his detention. Id. ¶ 22. 24 Later that night, Defendant John Doe, an SADP crime scene 25 investigator, approached Plaintiff and requested to inspect Plaintiff’s dash 26 camera, which Plaintiff obliged. Id. ¶ 25. Defendant Doe also requested to 27 review the footage stored on Plaintiff’s dash camera, but Plaintiff denied the 28 request. Id. ¶ 25. Upon returning the dash camera to Plaintiff, Defendant Doe 1 “ordered” Plaintiff to call Plaintiff’s boss and notify him that the police officers 2 would not “let [Plaintiff] go until the detective is done interviewing everyone.” 3 Id. ¶ 26. Plaintiff then sat in his vehicle and waited “for a few hours” until 4 Defendant Morroyoqui, an SADP detective, arrived at the parking lot and 5 began interviewing the present witnesses, including Plaintiff. Id. ¶ 27. 6 Following his interview with Plaintiff, Defendant Morroyoqui requested to 7 examine Plaintiff’s dash camera, but Plaintiff informed Defendant Morroyoqui 8 he was unable to locate the dash camera. Id. ¶ 28. At 2:12 a.m. the following 9 morning, Plaintiff was “allowed to leave” the parking lot and went home. Id. 10 Plaintiff alleges Defendants violated his Fourth Amendment right to be 11 free from unreasonable searches and seizures by detaining him for over three 12 hours without probable cause or reasonable suspicion of any wrongdoing. Id. 13 ¶¶ 29, 53-54. Plaintiff generally claims that Defendant David Valentin “allows 14 his officers and detectives to engage in unlawful searches and seizures,” and 15 further alleges Defendants Gallardo, Morroyoqui, and Doe acted wantonly, 16 maliciously, and willfully. Id. ¶¶ 51-52. Plaintiff seeks :(1) a declaratory 17 judgment that Defendants violated his Fourth Amendment rights; (2) an 18 injunction enjoining Defendants from engaging in unlawful detentions of 19 Santa Ana residents; and (3) nominal and punitive damages. Id. ¶ 55. 20 In Count 1, Plaintiff alleges Defendants violated his Fourth Amendment 21 rights by seizing him without probable cause or reasonable suspicion. Id. ¶ 53. 22 In Count 2, Plaintiff alleges Defendants violated his Fourth Amendment rights 23 by prolonging his unlawful detention in an effort to gain access to Plaintiff’s 24 dash camera without informing Plaintiff that he had a right to leave. Id. ¶ 54. 25 III. 26 STANDARD OF REVIEW 27 As noted, under 28 U.S.C. §§ 1915(e)(2) and 1915A, a district court must 28 dismiss a complaint in this circumstance if it fails to state a claim on which 1 relief may be granted. See Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 2 (per curiam) (finding that the provisions of 28 U.S.C. § 1915(e)(2)(B) are not 3 limited to prisoners but includes pretrial detainees). 4 A complaint may be dismissed for failure to state a claim due to a lack of 5 a cognizable legal theory or insufficient facts alleged under a cognizable legal 6 theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 7 When reviewing a complaint to determine whether it states a viable 8 claim, the Court applies the same standard as it would when evaluating a 9 motion to dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). See 10 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (citation omitted). 11 Rule 12(b)(6), in turn, is read in conjunction with Rule 8(a) . Zixiang Li v. 12 Kerry, 710 F.3d 995, 998 (9th Cir. 2013). Under Rule 8, a complaint must 13 contain a “short and plain statement of the claim showing that the pleader is 14 entitled to relief.” Rule 8(a)(2). While Rule 8 does not require detailed factual 15 allegations, at a minimum a complaint must allege enough specific facts to 16 provide both “fair notice” of the particular claim being asserted and “the 17 grounds upon which [that claim] rests.” Bell Atlantic Corp. v. Twombly, 550 18 U.S. 544, 555 (2007) (citation and quotation marks omitted); see also Ashcroft 19 v. Iqbal, 556 U.S. 662, 678 (2009) (observing that Rule 8 pleading standard 20 “demands more than an unadorned, the-defendant-unlawfully-harmed-me 21 accusation”) (citing Twombly, 550 U.S. at 555). 22 Thus, to survive a review here, a complaint must “contain sufficient 23 factual matter, accepted as true, to state a claim to relief that is plausible on its 24 face.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (citations and 25 quotation marks omitted). A claim is “plausible” when the facts alleged in the 26 complaint would support a reasonable inference that the plaintiff is entitled to 27 relief from a specific defendant for specific misconduct. Iqbal, 556 U.S. at 678 28 (citation omitted); see also Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 1 (N.D. Cal. 1988) (finding that a complaint “must allege the basis of [plaintiff’s] 2 claim against each defendant” to satisfy Rule 8 pleading requirements). 3 Allegations that are “merely consistent with” a defendant's liability, or reflect 4 only “the mere possibility of misconduct” do not “show[ ] that the pleader is 5 entitled to relief” (as required by Rule 8(a)(2)), and thus are insufficient to state 6 a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678-79 (citations and 7 quotation marks omitted). 8 In determining whether a complaint states a claim on which relief may 9 be granted, its allegations of material fact must be taken as true and construed 10 in the light most favorable to the plaintiff. See Lazy Y Ranch Ltd. v. Behrens, 11 546 F.3d 580, 588 (9th Cir. 2008). For a plaintiff appearing pro se, the court 12 must construe the allegations of the complaint liberally and afford the plaintiff 13 the benefit of any doubt. Karim–Panahi v. Los Angeles Police Dep't, 839 F.2d 14 621, 623 (9th Cir. 1988). However, “the liberal pleading standard . . . applies 15 only to a plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 16 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not 17 supply essential elements of the claim that were not initially pled.” Bruns v. 18 Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey 19 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 20 If a complaint fails to state a claim, the Court may provide the plaintiff 21 leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en 22 banc). Such leave should be granted if the defects in the complaint could be 23 corrected, especially if the plaintiff is a pro se litigant. Id. at 1130-31; see also 24 Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that “[a] pro 25 se litigant must be given leave to amend his or her complaint, and some notice 26 of its deficiencies, unless it is absolutely clear that the deficiencies of the 27 complaint could not be cured by amendment”). But if, after careful analysis, a 28 complaint clearly cannot be cured by amendment, the Court may dismiss 1 without leave to amend. See Cato, 70 F.3d at 1105-06; see, e.g., Chaset v. 2 Fleer/Skybox Int’l, 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that “there is 3 no need to prolong the litigation by permitting further amendment” where the 4 “basic flaw” in the pleading cannot be cured by amendment). 5 IV. 6 DISCUSSION 7 A. General Standard for Civil Rights Claims 8 To state a civil rights claim under Section 1983, a plaintiff must allege 9 that a defendant, while acting under color of state law, caused a deprivation of 10 the plaintiff’s federal rights. West v. Atkins, 487 U.S. 42, 48 (1988); Taylor v. 11 List, 880 F.2d 1040, 1045 (9th Cir. 1989). Causation “must be individualized 12 and focus on the duties and responsibilities of each individual defendant whose 13 acts or omissions are alleged to have caused a constitutional deprivation.” Leer 14 v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). An individual “causes” a 15 constitutional deprivation when he or she (1) “does an affirmative act, 16 participates in another’s affirmative acts, or omits to perform an act which he 17 is legally required to do that causes the deprivation”; or (2) “set[s] in motion a 18 series of acts by others which the [defendant] knows or reasonably should 19 know would cause others to inflict the constitutional injury.” Lacey v. 20 Maricopa Cty., 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (citation omitted). 21 B. Plaintiff’s Claims Appear Time-Barred on the Complaint’s Face 22 Statutes of limitation prevent the assertion of stale claims by limiting the 23 time (i.e., the “limitations period”) within which claims must be filed. See 24 Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1136 (9th Cir. 25 2001) (en banc). Although the statute of limitations is ordinarily an affirmative 26 defense, courts may dismiss an action on limitations grounds in certain 27 circumstances where the facts supporting the statute of limitations defense are 28 set forth in the papers plaintiff submitted himself. Dufour v. Allen, 2017 WL 1 373441, at *3 (C.D. Cal. Jan. 23, 2017) (citation and quotation marks omitted); 2 see also Seven Arts Filmed Entm’t Ltd. v. Content Media Corp. PLC, 733 3 F.3d 1251, 1254 (9th Cir. 2013) (“A statute-of-limitations defense, if ‘apparent 4 from the face of the complaint,’ may properly be raised in a motion to 5 dismiss.” (citation omitted)). However, dismissal based on the statute of 6 limitations is appropriate only if the assertions of the complaint, read with the 7 required liberality, and any properly judicially noticed documents, would not 8 permit the plaintiff to prove the statute was tolled. See Cervantes v. City of San 9 Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (citation omitted). 10 While § 1983 provides a federal cause of action, the applicable statute of 11 limitations for § 1983 claims is that which the State in which the cause of 12 action arose provides for personal-injury torts. Wallace v. Kato, 549 U.S. 384, 13 387 (2007). “Under California law, personal injury actions have a two-year 14 statute of limitations.” MacEachern v. City of Manhattan Beach, 623 F. Supp. 15 2d 1092, 1102 (C.D. Cal. 2009) (citing Cal. Civ. Proc. Code § 335.1). A § 1983 16 claim accrues when the plaintiff knows or has reason to know of the injury 17 which is the basis of the action. Bagley v. CMC Real Estate Corp., 923 F.2d 18 758, 760 (9th Cir. 1991). Typically, an action accrues on the date of the injury. 19 Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015). In the Fourth 20 Amendment context, the statute of limitations begins to run on the date of the 21 alleged search or seizure, not on the date the plaintiff learns the search or 22 seizure was constitutionally deficient. See Ucci v. LAPD, 2018 WL 6164318, 23 at *4 (C.D. Cal. May 25, 2018) (citation omitted). 24 Here, Plaintiff’s Section 1983 claim asserting a Fourth Amendment 25 violation accrued on May 28, 2018, the date of the alleged seizure. See 26 Complaint ¶ 11. As the Complaint was filed on October 25, 2021, over three 27 years after the claims had accrued, it appears on the face of the Complaint that 28 Plaintiff’s claims are time-barred unless statutory or equitable tolling applies. 1 1. Statutory Tolling 2 Once a claim accrues, the running of the limitations period may be tolled 3 (that is, suspended temporarily) in certain situations. Federal courts apply the 4 forum state’s law regarding tolling except where such laws are inconsistent 5 with federal law. Mills v. City of Covina, 921 F.3d 1161, 1166 (9th Cir. 2019) 6 (citation omitted); Hardin v. Straub, 490 U.S. 536, 538-39 (1989). In 7 interpreting state law, the federal court is “bound by a state’s highest court’s 8 interpretation of its own statute.” See Briceno v. Scribner, 555 F.3d 1069, 1080 9 (9th Cir. 2009); Lewis v. Tel. Emps. Credit Union, 87 F.3d 1537, 1545 (9th 10 Cir. 1996). “In the absence of a pronouncement by the highest court of a state, 11 the federal courts must follow the decision of the intermediate appellate courts 12 of the state unless there is convincing evidence that the highest court of the 13 state would decide differently.” Briceno, 555 F.3d at 1080 (quoting Owen By 14 and Through Owen v. United States, 713 F.2d 1461, 1464 (9th Cir. 1983)). 15 Here, Plaintiff does not claim entitlement to statutory tolling and the 16 Court has not found any basis to support such a claim. Under California law, 17 the statute of limitations may be tolled where a person is, “at the time the 18 cause of action accrued, imprisoned on a criminal charge, or in execution 19 under the sentence of a criminal court for a term less than for life” for a 20 maximum of two years. Cal. Civ. Proc. Code § 352.1. Section 352.1 is the 21 applicable tolling statute for Section 1983 actions involving claims of disability 22 of imprisonment. Ruiz v. Ahern, 2020 WL 4001465, at *3 (N.D. Cal. July 15, 23 2020). Accordingly, “inmates in California have four years to bring a § 1983 24 claim for damages.” Alexander v. Cty. of Los Angeles, 2021 WL 2407703, at 25 *3 (C.D. Cal. Mar. 18, 2021). As explained below, however, Plaintiff is not 26 entitled to the benefit of tolling under Section 352.1. 27 In Elliott v. City of Union City, the Ninth Circuit found that “being 28 continuously incarcerated prior to arraignment constitutes being ‘imprisoned 1 on a criminal charge’” under Cal. Civ. Proc. Code § 352(a)(3), the predecessor 2 to Section 352.1. 25 F.3d 800, 802-03 (9th Cir. 1994). At that time, the 3 California courts had not considered Section 352 in that context, and “[i]n the 4 absence of controlling state precedent,” the Ninth Circuit determined the 5 question “as the California Supreme Court would decide it.” Id. at 802 n.3. 6 The plaintiff in Elliott, had brought a Section 1983 action based on excessive 7 force during his arrest. After his arrest, he remained in continuous police 8 custody until he was convicted and sent to prison. Id. at 801. The Ninth 9 Circuit found that “‘actual, uninterrupted incarceration is the touchstone’ for 10 assessing tolling under § 352(a)(3), which covers all post-arrest custody,” and 11 therefore, “the statute of limitations applicable to [the plaintiff’s] § 1983 action 12 was tolled commencing at the time of his arrest and continuing through his 13 custody.” Id. at 803 (citation omitted). 14 Recently, however, the California Court of Appeal analyzed Section 15 352.1 to determine whether the statute of limitations is tolled when a cause of 16 action accrues while the plaintiff is in pretrial custody at the county jail. Austin 17 v. Medicis, 21 Cal. App. 5th 577, 582 (2018). In Austin, plaintiff’s claims 18 accrued while he was in county jail where he remained in continuous custody 19 until he was convicted and transferred to state prison. See id. at 582, 590. 20 Analyzing the statutory language and legislative history, the appellate court 21 concluded that tolling is applicable only if the plaintiff is serving a term of 22 imprisonment “in the state prison.” Id. at 582. Because the plaintiff was “in 23 pretrial custody in the Los Angeles County Jail [when the claims accrued], he 24 was not ‘imprisoned on a criminal charge’ . . . and section 352.1 [did] not 25 apply.” Id. at 582, 597. The court acknowledged the decision in Elliott, but 26 found it “unpersuasive,” noting that it “predated the enactment of section 27 352.1,” and thus, did not have the benefit of the legislative findings on the 28 subject. Id. at 590 n.4. 1 The California Supreme Court declined to review the decision in Elliott 2 and there is no evidence to suggest that the state supreme court would decide 3 Austin differently. Because federal courts must look to state statute of 4 limitations and tolling provisions for actions brought under Section 1983 and 5 are bound by a state court’s construction of the laws of that state, the holding 6 in Austin on the applicability of Section 352.1 controls. See Daniel v. Ford 7 Motor Co., 806 F.3d 1217, 1222 (9th Cir. 2015); In re Watts, 298 F.3d 1077, 8 1082-83 (9th Cir. 2002); Stephan v. Dowdle, 733 F.2d 642, 642 (9th Cir. 1984); 9 Owen, 713 F.2d at 1464; see also Shaw v. Sacramento Cty. Sheriff’s Dep’t, 810 10 F. App’x 553, 554 (9th Cir. 2020) (finding that the Court is “obligated to 11 follow” Austin because no evidence demonstrates the California Supreme 12 Court would rule to the contrary). Thus, under Austin, tolling under section 13 352.1 only applies to claims brought by state prisoners and not to individuals 14 who are in county jail, including pretrial detainees. See Ruiz, 2020 WL 15 4001465, at *4 (citing Austin, 21 Cal. App. 5th at 597). 16 In light of Austin, Plaintiff is not entitled to the benefit of Section 352.1 17 because he was not incarcerated in state prison at the time his claim accrued on 18 May 28, 2018. Although Plaintiff states he is currently a pretrial detainee in 19 county jail for charges not associated with his present suit (Complaint ¶ 4), 20 Plaintiff does not allege he was incarcerated in state prison at the time of, or 21 immediately following, the alleged seizure. Thus, even liberally construing the 22 complaint and giving Plaintiff the benefit of every doubt as a pro se litigant, 23 Plaintiff is not entitled to any statutory tolling under Section 352.1 because he 24 was not serving a term of imprisonment in state prison at the time of, or 25 immediately following, the alleged seizure on May 28, 2018. See Austin, 21 26 Cal. App. 5th at 597; see also Shaw, 810 F. App’x at 554; Sekerke v. 27 Hoodenpyle, 2021 WL 973565, at *6 (S.D. Cal. Mar. 16, 2021); Catchings v. 28 Seabrooks, 2021 WL 4456785, at *10 (C.D. Cal. Mar. 3, 2021); Arreola v. Cty. 1 of Fresno Public Defender’s Office, 2020 WL 1169222, at *6 (E.D. Cal. Mar. 2 11, 2020); Bell v. Mahoney, 2019 WL 6792793, at *6 (C.D. Cal. Aug. 29, 3 2019); Patrick v. McDermott, 2019 WL 10255472, at *6 (C.D. Cal. June 24, 4 2019); Lockett v. Cty. of Los Angeles, 2018 WL 6842539, at *2 (C.D. Cal. 5 Oct. 25, 2018). Further, even if this Court had followed Elliott rather than 6 Austin as other district courts in this circuit have,1 Plaintiff would not be 7 entitled to statutory tolling as he does not claim he was a pretrial detainee at 8 the time of, or immediately following, the accrual of his § 1983 claim. 9 2. Equitable Tolling 10 Moreover, Plaintiff does not assert in his Complaint he is entitled to 11 equitable tolling of the two-year statute of limitations. In California, equitable 12 tolling is “a judge-made doctrine ‘which operates independently of the literal 13 wording of the Code of Civil Procedure’ to suspend or extend a statute of 14 limitations as necessary to ensure fundamental practicality and fairness.” 15 Lantzy v. Centex Homes, 31 Cal. 4th 363, 370 (2003) (as modified) (citation 16 omitted). It generally requires a showing that the plaintiff was “seeking an 17 alternate remedy in an established procedural context.” Acuna v. San Diego 18 Gas & Elec. Co., 217 Cal. App. 4th 1402, 1416 (2013); see also Guerrero v. 19 Gates, 442 F.3d 697, 706 (9th Cir. 2006) (“California allows equitable tolling 20 of the statute of limitations when a plaintiff, ‘possessing several legal remedies 21

22 1 See Alexander, 2021 WL 2407703, at *4 (“There is a split among the district courts as to which case to follow [Elliott or Austin] . . . Because Elliott remains good law 23 and is binding authority in this circuit, this court applies Elliott’s continuous custody 24 rule.”); Ruiz, 2020 WL 4001465, at *5 (“This Court finds Austin does not provide the governing law.”); Baros v. Ramirez, 2019 WL 3849171, at *9 (C.D. Cal. June 5, 25 2019) (“Because Elliott remains good law in the Ninth Circuit, and because recent federal decisions have either expressly applied Elliott’s continuous custody rule or 26 distinguished from Elliott when addressing questions of tolling for disability of 27 imprisonment, the Court must apply the principles of the Elliott decision to Plaintiff’s case unless the Ninth Circuit holds otherwise.”). 28 1 . . ., reasonably and in good faith, pursues one designed to lessen the extent of 2 his injuries or damage,’ thereby allowing the statutory period to run.” (citation 3 omitted)). For equitable tolling to apply, a plaintiff must show (1) “timely 4 notice” of the claim to the defendant; (2) “lack of prejudice” to the defendant; 5 and (3) “reasonable and good faith conduct on the part of the plaintiff.” 6 McDonald v. Antelope Valley Cmty. Coll. Dist. 45 Cal. 4th 88, 102 (2008) 7 (citation omitted); see also Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 8 1191, 1204 (9th Cir. 2014). 9 The party asserting equitable tolling has the burden to show that the 10 doctrine applies. See In re Marriage of Zimmerman, 183 Cal. App. 4th 900, 11 912 (2010) (as modified); see also Kleinhammer v. City of Paso Robles, 385 12 Fed. App’x 642, 643 (9th Cir. 2010) (holding that a plaintiff asserting a § 1983 13 claim has the “burden to plead facts which would give rise to equitable 14 tolling”); Williams v. Holevinski, 295 F. App’x 167, 168 (9th Cir. 2008) 15 (concluding the district court properly found that plaintiff was not entitled to 16 equitable tolling because he failed to plead sufficient facts to account for his 17 lack of diligence in pursuing remedies). Further, where the time-bar appears 18 “on the face of the complaint,” the plaintiff “has an obligation to anticipate the 19 [statute of limitations] defense and plead facts to negative the bar.” Union 20 Carbide Corp. v. Superior Court, 36 Cal. 3d 15, 25 (1984); Reyes v. Healthcare 21 Servs. Group, Inc, 2015 WL 6551870, at *5 (C.D. Cal. Oct. 26, 2015). Thus, 22 because Plaintiff’s Complaint fails to state any facts showing why the doctrine 23 applies, Plaintiff is not entitled to equitable tolling on his § 1983 claims. 24 Accordingly, at this time the Court will not reach the underlying 25 sufficiency of Plaintiff’s substantive Fourth Amendment claims,2 as it appears 26

27 2 Absent a viable federal claim, the Court would likely decline to exercise supplemental jurisdiction over Plaintiff’s state law claims. See Smith v. Lenches, 263 28 F.3d 972, 977 (9th Cir. 2001) (“While 28 U.S.C. § 1367 grants federal courts 1 on the face of the Complaint that the statute of limitations expired prior to its 2 filing and no statutory or equitable tolling applies. See Ucci, 2018 WL 3 6164318, at *4 (observing that plaintiff’s claims were subject to sua sponte 4 dismissal because the “time bar is evident from the [complaint’s] face” and 5 plaintiff “alleged no facts showing an excuse, tolling, or other basis for 6 avoiding the statutory bar”). Rather, as set forth below, the Court will provide 7 Plaintiff an opportunity to be heard regarding the apparent limitations bar. 8 V. 9 CONCLUSION 10 Accordingly, for the foregoing reasons and before considering the 11 adequacy of the pleading of Plaintiff’s substantive claims, the Court finds that 12 it appears that the claims asserted in the Complaint are subject to dismissal as 13 time barred under the applicable statute of limitations. It also appears, for the 14 reasons set forth above, that no further amendment of the Complaint could 15 cure that infirmity. Plaintiff is therefore ORDERED to, within 30 days from 16 the date of this Order, to show cause, in writing, why this action should not be 17 dismissed with prejudice. In any such written response, Plaintiff is ordered to 18 set forth any valid legal and/or factual reasons why the statute of limitations 19 does not bar Plaintiff’s claims. If Plaintiff claims that he could amend his 20 Complaint to set forth further facts that would state a viable claim, he should 21 clearly set forth those facts and explain why they allege a valid, timely claim. 22 Plaintiff is admonished that failure to timely file a fully compliant 23 response within 30 days as directed in this Order may result in the dismissal 24 25 supplemental jurisdiction, the United States Supreme Court has held that district 26 courts may decline to exercise jurisdiction over supplemental state law claims in the 27 interest of judicial economy, convenience, fairness and comity.” (citing City of Chigo v. Int’l Coll. of Surgeons, 522 U.S. 156, 172-72 (1997))). 28 1 || of all or part of this action for failure to support failure to state a claim, 2 || failure to prosecute, and/or failure to obey a court order under Rule 41(b). 3 4 if de 5 || Dated: November 23, 2021 _ Lie AG ‘ ND. EARLY nited States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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