# Lewis v. Khan

> District Court, S.D. California · August 20, 2019

URL: https://www.frixlaw.com/law-library/cases/10079392

## Case

- **Court:** District Court, S.D. California
- **Decided:** August 20, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10079392

## How later opinions describe it (automated extraction)

- noting that screening pursuant to § 1915A “incorporates the familiar standard 5 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 6 12(b)(6)”
- noting that court may raise the defense of statute of limitations sua 13 sponte

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 BRIAN LEWIS, Case No.: 3:19-cv-1254-WQH-AHG
CDCR #J-49028,
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ORDER:
Plaintiff,
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vs. (1) GRANTING MOTIONS TO
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PROCEED IN FORMA PAUPERIS

15 [ECF Nos. 2, 4]; AND (2)
ALAN KHAN, DISMISSING COMPLAINT
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Defendant. PURSUANT
17 TO 28 U.S.C.9 § 1915(e)(2) AND
§ 1915A(b)(1)
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20 Plaintiff Brian Lewis, an inmate currently incarcerated at Corcoran State Prison, has
21 filed a civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff has
22 also filed two Motions to Proceed In Forma Pauperis (IFP) pursuant to 28 U.S.C. § 1915(a).
23 (ECF Nos. 2, 4.)
24 I. Motions to Proceed IFP
25 All parties instituting any civil action, suit or proceeding in a district court of the
26 United States, except an application for writ of habeas corpus, must pay a filing fee of
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1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed
5 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v.
6 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182,
7 1185 (9th Cir. 2015), regardless of whether the action is ultimately dismissed, see 28
8 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
9 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
10 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the
11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
13 trust account statement, the Court assesses an initial payment of 20% of (a) the average
14 monthly deposits in the account for the past six months, or (b) the average monthly balance
15 in the account for the past six months, whichever is greater, unless the prisoner has no
16 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody
17 of the prisoner then collects subsequent payments, assessed at 20% of the preceding
18 month’s income, in any month in which the prisoner’s account exceeds $10, and forwards
19 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);
20 Bruce, 136 S. Ct. at 629.
21 In support of his request to proceed IFP, Plaintiff has submitted a copy of his
22 California Department of Corrections and Rehabilitation (CDCR) Inmate Statement
23 Report. See ECF No. 4; 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2; Andrews, 398
24 F.3d at 1119. These documents show Plaintiff carried an average monthly balance of
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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See
27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.
June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed
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1 $338.75, maintained $383.65 in average monthly deposits to his trust account for the six
2 months preceding the filing of this action, and had an available balance of $192.44 to his
3 credit at the time of filing. See ECF No. 4 at 6–7.
4 Therefore, the Court GRANTS the Motions to Proceed IFP (ECF Nos. 2, 4) and
5 assesses the initial partial filing fee to be $76.73 pursuant to 28 U.S.C. § 1915(b)(1). The
6 Court further directs the Secretary of the CDCR, or his designee, to collect this initial filing
7 fee only if sufficient funds are available in Plaintiff’s account at the time this Order is
8 executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be
9 prohibited from bringing a civil action or appealing a civil action or criminal judgment for
10 the reason that the prisoner has no assets and no means by which to pay the initial partial
11 filing fee”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C.
12 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based
13 solely on a “failure to pay . . . due to the lack of funds available to him when payment is
14 ordered”). The remaining balance of the $350 total fee owed in this case must be collected
15 by the agency having custody of the prisoner and forwarded to the Clerk of the Court
16 pursuant to 28 U.S.C. § 1915(b)(2).
17 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A
18 A. Standard of Review
19 Because Plaintiff is a prisoner proceeding IFP, the Complaint requires a pre-answer
20 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the
21 Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, that is
22 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are
23 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing
24 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
25 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the
26 targets of frivolous or malicious suits need not bear the expense of responding.’”
27 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted).
28 “The standard for determining whether a plaintiff has failed to state a claim upon
1 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
2 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
3 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
4 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
5 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
6 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
7 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
8 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
9 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
10 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
11 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
12 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
13 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
14 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
15 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
16 B. Plaintiff’s Factual Allegations
17 In 2015, Plaintiff was “housed at Richard J. Donovan Correctional Facility (RJD).”
18 (Compl. at 3.) Defendant Khan is the “State Chaplain at RJD.” Id. Khan was “appointed
19 by Daniel Paramo, Warden of RJD, to be the staff head of the RJD Religious Meat
20 Alternate Program (RMA).” Id. In 2014, Plaintiff was “elected to the RJD Men’s Advisory
21 Council (MAC).” Id.
22 Plaintiff alleges that in 2015, “RJD Facility A was experiencing food shortages in
23 the culinary.” Id. At the same time, “RJD MAC was receiving an abundance of complaints
24 concerning the RJD RMA program.” Id. Plaintiff claims that the “MAC executive body”
25 determined that the “root of the food problems” was due to Khan purportedly “abdicat[ing]
26 part of his duties as the RMA head to CDCR inmates.” Id. Plaintiff alleges that Khan “was
27 allowing inmates to add and delete inmates from the RMA.” Id. The MAC chairman “sent
28 a formal request to Warden Paramo to meet with the food manager concerning the RMA
1 issues.” Id. at 4.
2 On March 1, 2015, Plaintiff “wrote a ‘formal complaint’ concerning Khan’s
3 handling of the RMA program.” Id. Plaintiff included in the complaint claims that
4 “inmates were waiting for their RMA ID for over 90 days and that the RMA count was
5 inconsistent with the amount of religious meats received into the Facility A
6 kitchen/culinary.” Id.
7 On March 9, 2015, Plaintiff “reported to the RJD Facility A culinary to pick up his
8 religious meal.” Id. at 5. However, Plaintiff was “informed by the Food Service Supervisor
9 that Khan had called to the culinary and said Plaintiff was to be removed from the list
10 immediately.” Id. Plaintiff “immediately filled out a CDCR Form 22 request for
11 interview” seeking to find out “why he had been removed from the RMA list.” Id. Two
12 days later, Plaintiff “received a CDCR 3030-C Religious Diet Program Agreement Notice
13 of Non Compliance from Khan.” Id. Khan “removed Plaintiff from RMA for 6 months
14 because Plaintiff had violated the terms of the contract that affords him a religious meal.”
15 Id. However, Plaintiff claims “he never violated the terms of the RMA agreement.” Id.
16 Plaintiff filed a “staff complaint” against Khan due to this decision. Id. at 5–6.
17 Plaintiff alleged that “Khan’s allegations were false.” Id. at 6. On May 2, 2015, R. Brown
18 interviewed Plaintiff regarding his staff complaint and “told Plaintiff that Khan had
19 removed Plaintiff from the RMA program without cause.” Id. Brown “immediately”
20 placed “Plaintiff back on the RMA list.” Id.
21 Plaintiff seeks unspecified declaratory relief. Id. at 9.
22 C. Statute of Limitations
23 Plaintiff’s claims arise from the time he was housed at RJD in March of 2015. See
24 Compl. at 1.2 “A claim may be dismissed [for failing to state a claim] on the ground that
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27 2 Plaintiff also sets forth a date of “5-17-17” for “Count 2.” There are no factual allegations in the
Complaint that refer to any incident occurring on May 17, 2017 and the Complaint does not contain a
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1 it is barred by the applicable statute of limitations only when ‘the running of the statute is
2 apparent on the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at
3 Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank,
4 465 F.3d 992, 997 (9th Cir. 2006)). “A complaint cannot be dismissed unless it appears
5 beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness
6 of the claim.” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir.
7 1995)); see also Cervantes v. City of San Diego, 5 F.3d 1273, 1276–77 (9th Cir. 1993)
8 (noting that where the running of the statute of limitations is apparent on the face of a
9 complaint, dismissal for failure to state a claim is proper, so long as the plaintiff is provided
10 an opportunity to amend in order to allege facts which, if proved, might support tolling);
11 see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764,
12 788 (9th Cir. 2000) (noting that court may raise the defense of statute of limitations sua
13 sponte), overruled on other grounds by Gonzalez v. Arizona, 677 F.3d 383, 389 (9th Cir.
14 2011) (en banc); Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (upholding sua
15 sponte dismissal under 28 U.S.C. § 1915(e)(2)(B) of prisoner’s time-barred complaint).
16 Because § 1983 contains no specific statute of limitation, federal courts apply the
17 forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393 F.3d
18 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Fink v.
19 Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s statute of limitations
20 was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the limitations period
21 was extended to two. Id. (citing Cal. Civ. Proc. Code § 335.1). The law of the forum state
22 also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 (2007) (citing Hardin v. Straub,
23 490 U.S. 536, 538–39 (1989)); Jones, 393 F.3d at 927 (noting that in actions where the
24 federal court borrows the state statute of limitation, the federal court also borrows all
25 applicable provisions for tolling the limitations period found in state law).
26 Under California law, the statute of limitations for prisoners serving less than a life
27 sentence is tolled for two years. Cal. Civ. Proc. Code § 352.1(a); Johnson v. California,
28 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 (2005).
1 Accordingly, the effective statute of limitations for most California prisoners is three years
2 for claims accruing before January 1, 2003, corresponding to a one-year limitations period
3 and two years for statutory tolling, and four years for claims accruing thereafter,
4 corresponding to a two-year limitations period plus two years for statutory tolling. In
5 addition, the limitations period for prisoners is tolled while the “prisoner completes the
6 mandatory exhaustion process.” Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005).
7 Unlike the length of the limitations period, however, “the accrual date of a § 1983
8 cause of action is a question of federal law that is not resolved by reference to state law.”
9 Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543–44 (noting that federal law governs
10 when a § 1983 cause of action accrues). “Under the traditional rule of accrual . . . the tort
11 cause of action accrues, and the statute of limitation begins to run, when the wrongful act
12 or omission results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder
13 federal law, a claim accrues when the plaintiff knows or has reason to know of the injury
14 which is the basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174
15 F.3d 987, 991 (9th Cir. 1999).
16 In this case, Plaintiff’s claims accrued in March of 2015. See Compl. at 1. Assuming
17 Plaintiff is not serving a life sentence, he is entitled to an additional two years of statutory
18 tolling pursuant to Cal. Civ. Proc. Code § 352.1(a). Johnson, 207 F.3d at 654; see also
19 Jones, 393 F.3d at 928 n.5 (noting that “California courts have read out if the statute the
20 qualification that the period of incarceration must be ‘for a term less than for life’ in order
21 for a prisoner to qualify for tolling”). Consequently, on the face of the pleading, Plaintiff’s
22 claims fall outside California’s two-year statute of limitations, even including all presumed
23 periods of tolling provided by statute. See Wallace, 591 U.S. at 391; Maldonado, 370 F.3d
24 at 955; Cal. Code Civ. Proc. § 335.1 (tolling statute of limitations “for a maximum of 2
25 years” during a prisoner’s incarceration).
26 Finally, Plaintiff’s claims could be considered timely if he alleges facts sufficient to
27 show the limitations period may be equitably tolled. See Cervantes, 5 F.3d at 1276–77.
28 Generally, federal courts also apply the forum state’s law regarding equitable tolling. Fink,
1 192 F.3d at 914; Bacon v. City of L.A., 843 F.2d 372, 374 (9th Cir.1988). Under California
2 law, Plaintiff must meet three conditions to equitably toll the statute of limitations: (1) he
3 must have diligently pursued his claim; (2) his situation must be the product of forces
4 beyond his control; and (3) Defendants must not be prejudiced by the application of
5 equitable tolling. See Hull v. Central Pathology Serv. Med. Clinic, 34 Cal. Rptr. 2d 175,
6 179 (Ct. App. 1994); Addison v. State of Cal., 578 P.2d 941, 943 (Cal. 1978); Fink, 192
7 F.3d at 916.
8 In this case, Plaintiff has failed to plead any facts which, if proved, would support
9 any plausible claim for equitable tolling.3 See Cervantes, 5 F.3d at 1277; Iqbal, 556 U.S.
10 at 679; Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir. 1993) (noting that plaintiff carries
11 the burden to plead facts which would give rise to equitable tolling); see also Kleinhammer
12 v. City of Paso Robles, 385 Fed. Appx. 642, 643 (9th Cir. 2010).
13 Accordingly, the Court finds the running of the statute of limitations is apparent on
14 the face of the Complaint. Plaintiff has failed to state a claim upon which §1983 relief may
15 be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1).
16 F. Duplicative Claims
17 The Complaint states that Plaintiff brings this action pursuant to 42 U.S.C. § 1983
18 as well as the Religious Land Use and Institutionalized Persons Act (RLUIPA). See
19 Compl. at 1.
20 These claims are duplicative of those Plaintiff previously raised in Lewis v. Cates,
21 et al., S.D. Civ. No. 3:15-cv-00791 DMS (MDD) (Lewis I). A court “may take notice of
22 proceedings in other courts, both within and without the federal judicial system, if those
23 proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 1212,
24 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir.
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27 3 As set forth below, Plaintiff was actively involved in litigation with Defendant Khan in a separate matter
from 2015 to 2018. There are no facts from which the Court could determine that Plaintiff was diligently
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1 2002)). A prisoner’s complaint is considered frivolous if it “merely repeats pending or
2 previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995)
3 (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations omitted).
4 In Lewis I, Plaintiff claimed RJD prison officials, including Defendant Khan,
5 violated his rights under RLUIPA when they purportedly failed to provide him with
6 religious meals. See Lewis I, ECF No. 1. Plaintiff litigated this matter with Defendant
7 Khan until a settlement was entered between Plaintiff and Khan on December 29, 2017.
8 Id., ECF No. 38. A joint motion to dismiss the entire action with prejudice was granted on
9 March 6, 2018. Id., ECF No. 44.
10 Because Plaintiff already filed an action with claims identical to the claims presented
11 in this case against the same defendant, the Court must dismiss the duplicative claims
12 brought in this action pursuant to 28 U.S.C. § 1915(e) (2) & 1915A(b). See Cato, 70 F.3d
13 at 1105 n.2; Resnick, 213 F.3d at 446.
14 III. Conclusion and Order
15 IT IS HEREBY ORDERED that:
16 1. The Motions to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Nos. 2, 4)
17 are GRANTED.
18 2. The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s trust
19 account the $76.73 initial filing fee assessed, if those funds are available at the time this
20 Order is executed, and to forward whatever balance remains of the full $350 owed in
21 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s
22 income to the Clerk of the Court each time the amount in Plaintiff’s account exceeds $10
23 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY
24 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
25 3. The Clerk of the Court is directed to serve a copy of this Order on Ralph Diaz,
26 Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883,
27 Sacramento, California, 94283-0001.
28 IT IS FURTHER ORDERED that:
1 4. The Complaint is DISMISSED for failure to state a claim and as frivolous
2 || pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).
3 5. The Court GRANTS Plaintiff forty-five (45) days leave from the date of this
4 Order in which to file an amended complaint that cures all the deficiencies of pleading
5 ||noted. Plaintiff's amended complaint must be complete in itself without reference to his
6 || original pleading. Defendants not named and any claims not re-alleged in the amended
7 ||complaint will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios,
8 || Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended
9 || pleading supersedes the original.”); Lacey, 693 F.3d at 928 (noting that claims dismissed
10 || with leave to amend which are not re-alleged in an amended pleading may be “considered
11 || waived if not repled”).
12 6. The Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank
13 of its form complaint under the Civil Rights Act, 42 U.S.C. § 1983 for Plaintiff's use
14 ||in amending.
15 IT IS SO ORDERED.
16 |} Dated: August 20, 2019 BE: eg Ze. A a
17 Hon, William Q. Hayes
18 United States District Court
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10079392. Public record. Not legal advice.