(PC) Gradford v. Tiexiera

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA WILLIAM J. GRADFORD, Case No. 1:19-cv-01783-NONE-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO DISMISS ACTION TIEXIERA; MCCARTHY, 21-DAY DEADLINE 15 Defendants.

17 Plaintiff William J. Gradford is proceeding in forma pauperis in this civil rights action.

18 Plaintiff alleges the defendants subjected him to First Amendment retaliation. (Doc. 1 at 5-7.) The Court finds that Plaintiff’s claims are barred by the statute of limitations. Thus, as a matter of law, Plaintiff is unable to cure the deficiencies in his pleading. See Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). Accordingly, the Court recommends that this action be dismissed.

22 I. SCREENING REQUIREMENT 23 The Court must dismiss an action brought by a plaintiff proceeding in forma pauperis if the plaintiff has raised claims that are frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 26 U.S.C. § 1915(e)(2). The Court should dismiss a complaint if it lacks a cognizable legal theory or fails to allege facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

1 II. DISCUSSION 2 Plaintiff states that, on December 5, 2016, while waiting in a holding cell to appear for court, he witnessed an inmate having a seizure. (Doc. 1 at 5, 7.) Plaintiff alleges that Deputy Sheriff Tiexiera grabbed the unresponsive inmate and threw him against the wall. (Id. at 5.)

5 Plaintiff told Tiexiera that he planned to file a grievance regarding the incident. (Id.) Plaintiff alleges Tiexiera responded that he “would be next” if he said anything. (Id.) Plaintiff states that Deputy Sheriff McCarthy later told him, “If you know what’s good for you, you will keep your mouth shut.” (Id. at 7.) Over the next several months, Tiexiera and McCarthy mocked, taunted, and harassed Plaintiff “based on [his] Dec. 5, 2016 complaint.” (Id. at 6.)

10 “The statute of limitations applicable to an action pursuant to 42 U.S.C. § 1983 is the personal injury statute of limitations of the state in which the cause of action arose.” Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011) (citations omitted). In California, “the applicable statute of limitations … is two years.” Jackson v. Barnes, 749 F.3d 14 755, 761 (9th Cir. 2014).

15 The events underlying this action span from December 5, 2016, to May 9, 2017. (See Doc.

16 1 at 5-7.) The statute of limitations then ran for two years until May 9, 2019. Plaintiff initiated this action on December 23, 2019 (see Doc. 1)—more than seven months after the statute of limitations period expired. Plaintiff’s claims are thus time-barred.

19 III. CONCLUSION AND RECOMMENDATION 20 For the reasons set forth above, Plaintiff’s claims are barred by the statute of limitations.

21 Accordingly, the Court RECOMMENDS that this action be DISMISSED.

22 These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days of the date of service of these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.”

27 /// 1 Plaintiff’s failure to file objections within the specified time may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

Sheila K. Oberto Dated: February 27, 2020 /s/ .

UNITED STATES MAGISTRATE JUDGE