(PC) Bland v. Salazar

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 JOSHUA D. BLAND, Case No. 1:19-cv-01499-NONE-EPG (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

RECOMMENDING THAT DEFENDANT’S

13 v. MOTION TO DISMISS BE DENIED AND

THAT DEFENDANT’S MOTION TO STRIKE

14 REUBEN A. SALAZAR II, BE DENIED

15 Defendant. (ECF Nos. 39 & 45)

16 OBJECTIONS, IF ANY, DUE WITHIN

TWENTY-ONE (21) DAYS

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18 Joshua Bland (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

19 this civil rights action filed pursuant to 42 U.S.C. § 1983.

20 Plaintiff filed the complaint commencing this action on October 18, 2019. (ECF No. 1).

21 On April 23, 2020, Plaintiff filed his First Amended Complaint (“FAC”). (ECF No. 16). Upon

22 screening the FAC, this Court found that Plaintiff had stated a cognizable claim against defendant

23 Doe. (ECF No. 19). Defendant Reuben A. Salazar II was substituted in place of defendant Doe

24 on September 30, 2020. (ECF No. 32). This case is now proceeding on Plaintiff’s claim against

25 defendant Salazar for violation of Plaintiff’s Fourteenth Amendment right to due process. (ECF

26 No. 32).

27 On December 7, 2020, Defendant Salazar filed a motion to dismiss and a request for

28 judicial notice. (ECF Nos. 39 & 40). Plaintiff filed an opposition to Defendant’s motion to

1 dismiss on December 21, 2020. (ECF No. 42). Defendant filed a reply on December 28, 2020.

2 (ECF No. 43). Plaintiff filed an unauthorized surreply on January 6, 2021. (ECF No. 44).

3 Defendant filed a motion to strike the surreply on January 13, 2021. (ECF No. 45).

4 Defendant argues that Plaintiff failed to file the present action within the applicable statute

5 of limitations. For the reasons stated herein, the undersigned recommends that Defendant’s

6 motion to dismiss be denied and that his motion to strike be denied.

7 I. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT

8 Plaintiff alleges as follows:

9 Plaintiff caused to be sent to Kern Valley State Prison Receiving and Release one pair of

10 $1,500 hearing aids. The hearing aids were to be sent to his father for repairs. Plaintiff’s father

11 never received the hearing aids. On the form provided by the California Department of

12 Corrections and Rehabilitation to ship the hearing aids out, Plaintiff indicated that, in the event he

13 was without funds to pay shipping charges, the hearing aids should be returned to him. Even

14 without funds, Plaintiff’s account was charged $1.61. Plaintiff appealed the process, and all three

15 levels were denied. Plaintiff was defrauded out of his $1,500 hearing aids and his $1.61.

16 On May 15, 2020, Plaintiff filed two exhibits with the Court accompanied by a note

17 requesting the exhibits be attached to the FAC.1 (ECF No. 21 at 1). Exhibit One is a receipt for

18 hearing aids. (Id. at 2-3). Exhibit Two is a Kern Valley State Prison (“KVSP”) Trust Withdrawal

19 Slip dated March 29, 2015, which is stamped with a received date of April 2. (Id. at 4-5).

20 The Court’s screening order allowed Plaintiff’s claim for violation of his Fourteenth

21 Amendment due process rights to proceed past screening. (ECF No. 19). The Court reviewed the

22 legal standards, then applied them to defendant Doe (subsequently identified as defendant

23 Salazar) as follows:

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1 While Plaintiff’s supplemental exhibits are in contravention of Local Rule 220, “[a] district court has broad

discretion over its own local rules and it may overlook violations where there is no indication that the opposing party

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is prejudiced.” United States v. Hempfling, 431 F. Supp. 2d 1069, 1087 (E.D. Cal. 2006) (emphasis in original).

Here, the Court will allow Plaintiff to add his exhibits in this manner because Defendant is not prejudiced by the

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addition, nor has Defendant argued so. Rather, Defendant relies on Plaintiff’s exhibits in attempting to establish the

untimeliness of Plaintiff’s complaint.

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1 Plaintiff appears to be alleging that he attempted to send his $1,500 hearing aids to

his father so that they could be repaired. However, he had insufficient funds to

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pay for his hearing aids to be sent to his father. Because Plaintiff had insufficient

funds, his $1,500 hearing aids were not sent to his father or returned to him.

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Although it is possible that the failure to send Plaintiff his hearing aids was an

4 unauthorized intentional deprivation of property, construing the facts liberally in

favor of Plaintiff, Plaintiff has alleged that there was an intentional deprivation of

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property pursuant to an established state procedure regarding what happens to

6 property that is supposed to be shipped if an inmate has insufficient funds to ship

the property. Thus, the Court will allow a claim for violation of Plaintiff’s

7 Fourteenth Amendment due process rights to proceed past screening.

8 (Id. at 5).

9 II. MOTION TO DISMISS LEGAL STANDARDS

10 In considering a motion to dismiss, the Court must accept all allegations of material fact in

11 the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Hosp. Bldg. Co. v. Rex

12 Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the

13 light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on

14 other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813, 816

15 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's

16 favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings “must

17 be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler,

18 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally

19 construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

20 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the

21 complaint. See Iqbal, 556 U.S. at 679. “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a

22 short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to

23 ‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.’” Bell

24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v.

25 Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately prevail but

26 whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at

27 236 (1974).

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1 III. DEFENDANT’S MOTION TO DISMISS

2 A. Defendant’s Motion

3 In his motion to dismiss, Defendant argues that Plaintiff’s suit is barred by the statute of

4 limitations. (ECF No. 39-1 at 3). In support, Defendant relies on Plaintiff’s exhibits to the FAC,

5 (ECF No. 21), and Plaintiff’s subpoena, (ECF No. 22-1), to determine the accrual date of

6 Plaintiff’s claim.2 (ECF No. 39-1 at 3-4). Defendant then argues that Plaintiff’s claim is

7 untimely by over six months based on a two-year limitations period that was statutorily tolled for

8 an additional two years. (Id. at 4). Defendant then argues that Plaintiff is not entitled to any

9 equitable tolling because such tolling runs concurrently with the two years of statutory tolling that

10 Plaintiff already received. (Id. at 5-6). In addition, Defendant argues that Plaintiff admitted in his

11 original complaint that he did not complete the exhaustion process, and therefore, Plaintiff is not

12 entitled to exhaustion of administrative remedies. (Id. at 6).

13 B. Plaintiff’s Opposition

14 Plaintiff begins his opposition by arguing that there is no statute of limitations for fraud in

15 California. He then challenges the constitutionality of Cal. Civ. Proc. Code §§ 335.1 & 352.1, as

16 well as the Prison Litigation Reform Act. (ECF No. 42 at 1). Plaintiff’s final objection is that the

17 Attorney General should represent Plaintiff in this case as opposed to Defendant. (Id. at 1).

18 C. Plaintiff’s Surreply

19 Plaintiff filed an unauthorized surreply on January 6, 2021. (ECF No. 44). In the

20 surreply, among the same claims presented in his opposition, Plaintiff states that he “exhausted

21 the available administrative remedies provided him.” (Id. at 2). Plaintiff’s surreply also contains

22 a declaration that states, in relevant part:

23 3. THAT, some months later Affiant’s father tells Affiant that he never got said

hearing aids.

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4. THAT, Affiant immediately submitted an administrative appeal, to which the

25 Appeals Coordinator never replies, thus, making such process effectively

unavailable.

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5. THAT, Affiant, not knowing what else to do, Affiant continuse [sic] to attempt

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2 While Defendant relies on Plaintiff’s subpoena to help establish the date of loss, in light of the exhibits attached to

28 the FAC, reliance on the subpoena is not necessary.

1 to submit appeals, all to no avail.

2 (Id. at 4).

3 IV. DISCUSSION

4 A. Defendant’s Motion to Strike

5 Plaintiff filed a surreply on January 6, 2021, (ECF No. 44), which Defendant moves to

6 strike. (ECF No. 45). While the Court generally views surreplies with disfavor, and Plaintiff did

7 not request, nor did the Court grant permission to file one, “district courts have the discretion to

8 either permit or preclude a surreply.” Garcia v. Biter, 195 F. Supp. 3d 1131, 1134 (E.D. Cal.

9 2016) (citing U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009),

10 overruled on other grounds by U.S. ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121

11 (9th Cir. 2015)). Considering that Plaintiff is pro se, that this is a motion to dismiss, and that

12 Plaintiff’s surreply raises relevant arguments regarding exhaustion and accrual, the Court

13 recommends permitting Plaintiff’s surreply and denying Defendant’s motion to strike.

14 B. Statute of Limitations

15 1. Law Related to Statute of Limitations for Relevant Claim

16 California’s two-year statute of limitations for personal injury actions applies to § 1983

17 claims brought in this state. Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th

18 Cir. 2014); Cal. Code Civ. Proc. § 335.1. However, the statute of limitations can be tolled for

19 various reasons, including statutory and equitable tolling.

20 Whether a plaintiff is entitled to statutory or equitable tolling is determined by California

21 law, except to the extent that California laws are inconsistent with federal law. Jones v. Blanas,

22 393 F.3d 918, 927 (9th Cir. 2004). California law provides for the statutory tolling for the

23 disability of imprisonment for up to two years when the plaintiff is imprisoned for less than a life

24 term. Cal. Civ. Code § 352.1. On the other hand, equitable tolling “operates independently of the

25 literal wording of the Code of Civil Procedure to suspend or extend a statute of limitations as

26 necessary to ensure fundamental practicality and fairness.” Jones, 393 F.3d at 928 (quoting

27 Lantzy v. Centex Homes, 31 Cal. 4th 363, 370 (2003)) (internal quotation marks omitted).

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1 “Where exhaustion of an administrative remedy is mandatory prior to filing suit, equitable

2 tolling is automatic: ‘It has long been settled in this and other jurisdictions that whenever the

3 exhaustion of administrative remedies is a prerequisite to the initiation of a civil action, the

4 running of the limitations period is tolled during the time consumed by the administrative

5 proceeding.’” McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 101 (2008)

6 (quoting Elkins v. Derby, 12 Cal. 3d 410, 414 (1974)). See also Brown v. Valoff, 422 F.3d 926,

7 943 (9th Cir. 2005) (“[T]he applicable statute of limitations must be tolled while a prisoner

8 completes the mandatory exhaustion process.”).

9 “The burden of alleging facts which would give rise to tolling falls upon the plaintiff.”

10 Hinton Pacific Enterprises, 5 F.3d 391, 395 (9th Cir. 1993). However, equitable tolling need not

11 be explicitly pleaded. Rather, a complaint must provide sufficient assertions to show tolling:

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Our court of appeals has addressed equitable tolling, and in doing so, stated that

13 “[a] motion to dismiss based on the running of the statute of limitations period

may be granted only if the assertions of the complaint, read with the required

14 liberality, would not permit the plaintiff to prove that the statute was

tolled.” Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206–07 (9th Cir.

15 1995). “It is not necessary that the complaint explicitly plead equitable tolling,” if

“facts are alleged suggesting the applicability of equitable tolling to suspend the

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running of the statute [of limitations].” Audio Marketing Services, S.A.S. v.

17 Monster Cable Products, Inc., C 12–04760 WHA, 2013 WL 633202, *6 (N.D.

Cal. Feb. 20, 2013).

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Biotechnology Value Fund, L.P. v. Celera Corp., 12 F. Supp. 3d 1194, 1206 (N.D. Cal. 2013)

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(emphases omitted and parentheticals accordingly changed).

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“Generally, the applicability of equitable tolling depends on matters outside the pleadings,

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so it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss (where review is limited to

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the complaint) if equitable tolling is at issue.” Huynh v. Chase Manhattan Bank, 465 F.3d 992,

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1003-04 (9th Cir. 2006); accord Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir.

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1993) (“California’s fact-intensive test for equitable tolling is more appropriately applied at the

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summary judgment or trial stage of litigation.”).

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In addition to tolling principles, the date a claim accrues may also affect the timeliness of

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the claim. “Although state law determines the length of the limitations period, federal law

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1 determines when a civil rights claim accrues.” Morales v. City of Los Angeles, 214 F.3d 1151,

2 1153–54 (9th Cir. 2000). “Under federal law, a claim accrues when the plaintiff knows or has

3 reason to know of the injury which is the basis of the action.” TwoRivers v. Lewis, 174 F.3d 987,

4 991 (9th Cir. 1999).

5 2. Consecutive Versus Concurrent Tolling

6 Defendant’s motion is based on the argument that Plaintiff is not entitled to tolling on both

7 statutory and equitable grounds. (ECF No. 39-1 at 5) (Even though “Plaintiff is entitled to two

8 years of statutory tolling due to his ‘disability’ of imprisonment… he is not entitled to additional

9 time during the exhaustion process.”). Therefore, whether or not Plaintiff’s claim can be deemed

10 untimely based on the face of the complaint rests upon the legal issue of whether applicable

11 tolling should run consecutively or concurrently.

12 The Court has not found any controlling authority on point, nor has either party cited to

13 any. Instead, Defendant relies on the case of Stevenson v. Holland, 2017 WL 2958731 (E.D. Cal.

14 July 7, 2017), which summarized the divergent positions taken by district courts, but ultimately

15 came out against Defendant’s position. In Stevenson v. Holland, the court notes that, “[n]o

16 binding authority on this question exists and district courts in this circuit are divided.” 2017 WL

17 2958731 at 5. The court then provides a thoughtful evaluation of the jurisdictional split as

18 follows:

19 Most of the district courts that have permitted equitable tolling in addition to

statutory tolling when the tolling events overlap have relied upon language from

20 Lantzy: “[e]quitable tolling under California law operates independently of the

literal wording of the [California] Code of Civil Procedure to suspend or extend a

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statute of limitations as necessary to ensure fundamental practicality and fairness.”

E.g., Carranza v. Lewis, 2017 WL 1050538, *17-18 (N.D. Cal. Mar. 17, 2017);

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Beard v. Pennington, 2015 WL 7293652, *6-7 (N.D. Cal. Nov. 19, 2015); Burns v.

23 Crook, 2008 WL 5103183, *3 (S.D. Cal. Dec. 3, 2008). Those courts have read

California law regarding equitable tolling to require tacking of additional time

24 (beyond the statutory tolling period) to the end of a limitations period when an

equitable tolling event occurs during a period of statutory tolling. Carranza, 2017

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WL 1050538 at *18 (“[N]o matter when [the equitable tolling event] took place,

26 [the duration of the equitable tolling event] is tacked onto the end of the limitations

period.”); Akhtar v. Mesa, 2014 WL 1922576, *7-8 (E.D. Cal. May 14, 2014);

27 (applying tolling for the duration of the prison exhaustion process and statutory

tolling to a prisoner’s claim to extend the limitations period beyond four years);

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1 Dawkins v. Woodford, 2012 WL 554371, *5 (S.D. Cal. Feb. 21, 2012) (same);

Crayton v. Hedgpeth, 2011 WL 1988450, *9 (E. D Cal. May 20, 2011) (same);

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Burns, 2008 WL 5103183 at *3 (same); see also Adler, 2013 WL 3481584 at *5

(assuming without deciding that the plaintiff could receive the benefit of equitable

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and statutory tolling even when the tolling events overlap in time).

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The district courts that have declined to apply equitable tolling in addition to

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statutory tolling when the equitable tolling event overlaps with the period of

6 statutory tolling have relied upon (1) the “common sense” explanation that “when

two or more reasons for tolling exist” during the same period that those reasons

7 “will toll concurrently during the time they are both active, and are not tacked

consecutively, one upon the other,” and (2) Rose v. Petaluma & S.R. Ry. Co. for

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the proposition that separate periods of disability cannot be tacked. Lopez v.

Schwarzenegger, 2012 WL 78377, *5 (E.D. Cal. Jan. 10, 2012); accord Oliver v.

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McDaniel, 2016 WL 4535389, *3 (C.D. Cal. June 2, 2016); see also Martin v.

10 Biaggini, 2015 WL 1399240, *4 (N.D. Cal. Mar. 26, 2015) (identifying that Rose

and Lantzy are both inapt analogs but agreeing that overlapping reasons for tolling

11 should result in only a single period of tolling).

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The former camp’s reasoning is most consistent with Ninth Circuit authority on

13 tolling pending exhaustion of administrative relief. Brown v. Valoff, 422 F.3d at

943 (tolling the limitations period during the administrative exhaustion process

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without regard to statutory tolling); see Elmore v. Arong, 2010 WL 366628, *2

(E.D. Cal. Jan. 26, 2010). Application of statutory and equitable tolling

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consecutively is also more consistent with the mandate of California law to tack

16 time to the end of the limitations period for equitable tolling. See Lantzy, 31 Cal.4th

at 370-371.

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Stevenson v. Holland, 2017 WL 2958731 at 5-6 (alteration in original) (footnotes omitted).

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This Court agrees with the logic found in Stevenson v. Holland and its recent progeny

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within the Eastern District and finds that consecutive tolling is appropriate here. See Johnson v.

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Frauenheim, 2020 WL 4890297, (E.D. Cal. Aug. 20, 2020) (“Following the logic of Stevenson v.

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Holland, this Court concludes that the tolling periods apply consecutively.”). Therefore, the

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Court recommends rejecting Defendant’s argument that Plaintiff is not entitled to additional

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tolling while exhausting his administrative remedies.

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3. Calculation of Statute of Limitations

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Now that the Court has found that statutory and equitable tolling should be applied

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consecutively, it turns to whether Plaintiff’s claims are clearly barred by the statute of limitations

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based on the facts alleged in the complaint.

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1 Defendant argues that Plaintiff’s claim accrued on April 2, 2015, which tolled until April

2 2, 2017, due to Plaintiff’s disability of incarceration. Cal. Civ. Proc. Code § 352.1. California’s

3 two-year limitations period for § 1983 claims then took effect, and Plaintiff’s claim expired,

4 absent further tolling, on April 2, 2019. Plaintiff filed his claim on October 18, 2019—

5 approximately six-and-a-half months later.

6 But, again, this calculation does not include any tolling for exhaustion of administrative

7 remedies. Plaintiff, however, claims that he did exhaust (or attempted to exhaust) his

8 administrative remedies. In his First Amended Complaint, Plaintiff indicates by checkmark that

9 there was an available inmate appeal or administrative remedy, that he filed an appeal or

10 grievance, and the process was completed. (ECF No. 16 at 2). In response, Defendant argues

11 that Plaintiff admitted in the original complaint to not having exhausted his administrative

12 remedies. (ECF No. 39-1 at 6) (Defendant cites to the original complaint, (ECF No. 1 at 9),

13 where Plaintiff indicates that he did not “appeal [his] request for relief… to the highest level.”).

14 However, Plaintiff’s earlier statement is not a conclusive judicial admission. See Huey v.

15 Honeywell, Inc., 82 F.3d 327, 333 (9th Cir. 1996) (“When a pleading is amended or withdrawn,

16 the superseded portion ceases to be a conclusive judicial admission…”).3 Additionally, in

17 Plaintiff’s surreply, he claims that administrative remedies were not available to him. (ECF No.

18 44 at 4) (“…the Appeals Coordinator never replies, thus, making such process effectively

19 unavailable”; and “[Plaintiff] continuse [sic] to attempt to submit appeals, all to no avail.”).

20 Plaintiff’s assertion in his FAC that he exhausted administrative remedies and his claim

21 that any failure to exhaust was due to unavailability of administrative remedies prevents the Court

22 from finding that Plaintiff’s claims are barred by the statute of limitations, at this stage in the

23 case. Given that this is not a motion for summary judgment as to exhaustion of administrative

24 remedies, or even a motion to dismiss on that basis, Plaintiff’s explanations prevent this Court

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3 The Court notes that, in opposing this motion to dismiss, Plaintiff has provided different versions of events

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regarding the grievance process. See, e.g., (ECF No. 1 at 9) (Plaintiff has not completed the exhaustion process);

(ECF No. 16 at 2) (Plaintiff has completed the exhaustion process); and (ECF No. 44 at 4) (Plaintiff submitted and

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continues to submit appeals without response from the administrative coordinator). While these different versions

cast doubt on Plaintiff’s assertion that he properly exhausted all available administrative remedies, the Court cannot

28 resolve this factual dispute in connection with this motion to dismiss.

1 from holding that Plaintiff is not entitled to any tolling for exhaustion of administrative remedies.

2 Thus, it is not clear on the face of the complaint that Plaintiff’s claim is untimely. 4 The Court

3 therefore recommends denying Defendant’s motion to dismiss. 5

4 4. Plaintiff’s Additional Arguments

5 Finally, the Court briefly addresses several arguments Plaintiff raises in his opposition.

6 First, Plaintiff challenges the constitutionality of California’s applicable two-year statute of

7 limitations. Plaintiff, however, does not include any relevant reasoning or caselaw indicating

8 why the limitations period is unconstitutional, and the Ninth Circuit has regularly applied it to §

9 1983 actions. See, e.g., Lockett v. Cty. of Los Angeles, 977 F.3d 737, 739 (9th Cir. 2020)

10 (finding that Cal. Civ. Proc. Code § 335.1 applies to section 1983 civil rights actions in

11 California). Indeed, Plaintiff’s very argument has already been deemed frivolous by another

12 court; albeit after he submitted this argument. Bland v. Moffett, 2021 WL 1222792, at *1 (E.D.

13 Cal. Apr. 1, 2021) (finding Plaintiff’s constitutional challenge to the statute of limitations

14 frivolous).

15 Plaintiff next claims that his First and Fourteenth Amendment rights have been impeded

16 by application of Cal. Civ. Proc. Code § 335.1 but provides no justification or relevant cases to

17 support this contention.

18 Plaintiff also argues that there is no statute of limitations for fraud in California. This

19 argument is meritless because this case is proceeding on a § 1983 due process claim which

20 borrows California’s two-year statute of limitations. See Butler v. Nat’l Cmty. Renaissance of

21 Cal., 766 F.3d 1191, 1198 (9th Cir. 2014) (applying California’s two-year statute of limitations in

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23 4 Nothing in this order holds that Plaintiff has properly exhausted all administrative remedies, or that Plaintiff’s

complaint was in fact timely filed. The Court is only recommending denying Defendant’s motion to dismiss because

24 it cannot conclude that Plaintiff’s claims are barred based on the face of the complaint.

5 There is also a dispute regarding when Plaintiff’s claim accrued. As described above, Defendant’s motion is based

25 on an accrual date of April 2, 2015, which is the date that Plaintiff turned over his hearing aids for shipping. (ECF

No. 21 at 5). However, Plaintiff states in his surreply that he became aware of his loss “some months later.” (ECF

No. 44 at 4). A federal claim accrues when “the plaintiff knows or has reason to know of the injury[,]” TwoRivers,

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174 F.3d at 991, and an injury occurs “when the plaintiff knew or in the exercise of reasonable diligence should have

known of the injury and the cause of that injury.” Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1050

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(9th Cir. 2008). Here, because Plaintiff indicates that he was not immediately aware of his loss, and it does not

appear that Plaintiff was in a position to know when his injury occurred, the beginning of the limitations period is

28 unclear, and Plaintiff may be entitled to delayed accrual.

1 the § 1983 context). No claim for fraud is proceeding in this case.

2 Next, Plaintiff argues that the PLRA is unconstitutional. This argument does not relate to

3 the timeliness of his claim. In any event, courts have long held that the PLRA is constitutional.

4 A recent case summarized the relevant authority as follows:

5 [F]ederal courts have consistently rejected claims that the PLRA violates the

Constitution. See Gilmore v. People of the State of California, 220 F.3d 987, 1008

6 (9th Cir. 2000) (“No circuit court has found the PLRA to violate due process or the

Equal Protection Clause. We decline to stray from these precedents.[”]); Polanco

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v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (joining the other circuits that have

upheld the constitutionality of this statute.); White v. State of Colo., 157 F.3d

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1226, 1235 (10th Cir. 1998) (“we now join the Eleventh, Sixth, and Fifth Circuits

9 in concluding that § 1915(g) does not violate the guarantees of equal protection

and due process); Gavin v. Branstad, 122 F.3d 1081, 1092 (8th Cir. 1997)

10 (reversing district court decision that immediate termination decision of PLRA

was unconstitutional); Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999) (“the

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government's interest was apparently to curtail frivolous prisoners’ suits and to

12 minimize the costs—which are borne by taxpayers—associated with those suits”

and survive the minimal standard for rational basis review.); see also Morrison v.

13 Davis, 88 F.Supp.2d 799, 808 (S.D. Ohio 2000), amended in part, 195 F.Supp.2d

1019 (S.D. Ohio 2001) (“This Court finds that although the PLRA does single out

14 prisoners for a particular burden in § 1983 actions, Congress’s goal in placing that

burden on prisoners was to bring prisoners’ litigation incentives on par with, not

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below, non-incarcerated litigants. The principles of equal protection do not prevent

16 Congress from burdening prisoners in this way. Thus, Plaintiff’s arguments fit

better in the legislative rather than the judicial forum.”).

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Luedtke v. Drozd, 2020 WL 7490085, at *3 (E.D. Cal. Dec. 21, 2020), report and

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recommendation adopted, 2021 WL 147999 (E.D. Cal. Jan. 15, 2021).

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Finally, Plaintiff argues that the Attorney General should represent him instead of

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Defendant in this action. The Court finds no merit to this claim. Plaintiff cites to no relevant

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cases or law indicating that he is entitled to such representation, nor is the Court aware of any.

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V. CONCLUSION AND RECOMMENDATIONS

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For the foregoing reasons, the Court recommends denying Defendant’s motion to dismiss

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because it cannot find, based on the face of the complaint, that Plaintiff’s claims are time barred.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendant’s motion to strike (ECF No. 45) be DENIED; and

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2. Defendant’s motion to dismiss (ECF No. 39) be DENIED.

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1 These findings and recommendations are submitted to the United States district judge

2 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one (21)

3 | days after being served with these findings and recommendations, any party may file written

4 | objections with the court. Such a document should be captioned “Objections to Magistrate

5 | Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed

6 | within seven (7) days after service of the objections. The parties are advised that failure to file

7 | objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

8 | Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

9 | (9th Cir. 1991)).

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IT IS SO ORDERED.

12) Dated: _ April 22, 2021 [spe ey □□

13 UNITED STATES MAGISTRATE JUDGE

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