Arellano v. Olson

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RAUL ARELLANO, Case No.: 21-cv-1685-MMA (MSB)

CDCR #AH-1995,

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ORDER: (1) GRANTING MOTION

Plaintiff,

13 TO PROCEED IN FORMA

vs. PAUPERIS; (2) DENYING MOTION

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FOR COURT TO HOLD

R. OLSON,

15 SCREENING; AND (3) DISMISSING

Defendant. COMPLAINT FOR FAILURE TO

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STATE A CLAIM PURSUANT TO

17 28 U.S.C. § 1915(e)(2)(B) AND

28 U.S.C. § 1915A(b)

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19 [Doc. Nos. 2, 6]

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22 Plaintiff Raul Arellano, incarcerated at Richard J. Donovan Correctional Facility

23 Prison (“RJD”), proceeding pro se and a frequent litigant in this district, has filed new

24 civil rights action pursuant to 42 U.S.C. § 1983. Doc. No. 1 (“Compl.”). Plaintiff’s latest

25 suit is an attempt to relitigate retaliation claims against RJD Appeals Coordinator R.

26 Olson, which arose in 2014, but were dismissed without prejudice based on his failure to

27 exhaust them in Arellano v. Self, et al., S.D. Cal. Civil Case No. 3:15-cv-2300-AJB-LL

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1 (“Olson I”).

2 Plaintiff has not prepaid the filing fee required by 28 U.S.C. § 1914(a) to

3 commence a new civil action. Instead, he filed a Motion to Proceed In Forma Pauperis

4 (“IFP”) pursuant to 28 U.S.C. § 1915(a). Doc. No. 2. Soon after, Plaintiff filed a Motion

5 requesting that the Court “hold the screening process” while his Motion for

6 Reconsideration pursuant to Fed. R. Civ. P. 60(b) remained pending in Olson I. Doc.

7 No. 6. Because Plaintiff’s Motion for Reconsideration has since been denied however,

8 see Olson I at Doc. No. 104, the Court DENIES AS MOOT Plaintiff’s request that the

9 Court defer its mandatory screening of his newly filed Complaint, Doc. No. 6.

10 I. MOTION TO PROCEED IFP

11 All parties instituting any civil action, suit or proceeding in a district court of the

12 United States, except an application for writ of habeas corpus, must pay a filing fee of

13 $402.2 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

14 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

15 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez

16 v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The fee is not waived for prisoners,

17 however. If granted leave to proceed IFP, they nevertheless remain obligated to pay the

18 entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016);

19 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their

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1 Plaintiff admits his “case was priorly [sic] litigated” in Olson I, S.D. Cal. Civil Case No. 3:15-cv-

22 2300-AJB-LL, on the face of his new Complaint. Compl. at 3. Even if he had not, however, the Court

may take judicial notice of “‘proceedings in other courts, both within and without the federal judicial

23 system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d

1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002));

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see also Est. of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997) (taking judicial notice

25 of court filings in a related case to affirm the district court’s decision to dismiss the plaintiff’s complaint

as untimely and deny the plaintiff equitable tolling).

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2 Effective December 1, 2020, civil litigants must pay an additional administrative fee of $52, in

27 addition to the $350 filing fee set by statute. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of

Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 administrative fee does not

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1 actions are dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); Taylor

2 v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

3 To qualify, section 1915(a)(2) requires prisoners seeking leave to proceed IFP to

4 submit a “certified copy of the trust fund account statement (or institutional equivalent)

5 for . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

6 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

7 trust account statement, the Court assesses an initial payment of 20% of (a) the average

8 monthly deposits in the account for the past six months, or (b) the average monthly

9 balance in the account for the past six months, whichever is greater, unless the prisoner

10 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution

11 having custody of the prisoner then collects subsequent payments, assessed at 20% of the

12 preceding month’s income, in any month in which his account exceeds $10, and forwards

13 those payments to the Court until the entire filing fee is paid. See 28 U.S.C.

14 § 1915(b)(2); Bruce, 577 U.S. at 84.

15 In support of his IFP Motion, Plaintiff has submitted a copy of his California

16 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report, as

17 well as a prison certificate authorized by a RJD Accounting Officer. Doc. No. 3; see also

18 28 U.S.C. § 1915(a)(2); CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show

19 Plaintiff carried no balance, had no money deposited to his trust account during the six-

20 months prior to filing, and had no money to his credit at the time he filed suit.3 Doc.

21 No. 3 at 1, 3.

22 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP and declines to

23 assess any initial filing fee because his trust account statements show he “has no means to

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26 3 In fact, Plaintiff’s trust account records as of September 28, 2021, reveal he remains obligated to pay

$6,725 in filings fees as a result of his having filed more than a dozen separate civil actions and appeals

27 in this Court and in the Ninth Circuit since 2014. See Doc. No. 3 at 3‒4. Plaintiff owes an additional

$9,750.22 in restitution pursuant to a fine imposed by the San Diego Superior Court in Criminal Case

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1 pay it.” Bruce, 577 U.S. 84–85. Instead, the Court DIRECTS the Secretary of the

2 CDCR to collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914

3 and to forward those fees to the Clerk of Court pursuant to the installment payment

4 provisions set forth in 28 U.S.C. § 1915(b)(2).

5 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b)

6 A. Standard of Review

7 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a

8 preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

9 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion

10 found frivolous, malicious, failing to state a claim, or seeking damages from defendants

11 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc)

12 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

13 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

14 the targets of frivolous or malicious suits need not bear the expense of responding.’”

15 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).

16 “The standard for determining whether a plaintiff has failed to state a claim upon

17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

19 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

20 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

22 12(b)(6)”).

23 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain

24 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

25 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);

26 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but

27 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

28 statements, do not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an

1 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the

2 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,

3 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1

4 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially

5 pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).4

6 B. Factual Allegations & Prior Litigation History

7 In his Complaint, which names only RJD Appeals Coordinator R. Olson as a

8 Defendant but is otherwise identical to the Second Amended Complaint he filed in July

9 2016 in Olson I, Plaintiff realleges Olson retaliated against him during a June 19, 2014

10 interview related to a series of CDCR 602 Inmate/Parolee grievances he filed regarding

11 “illegal” withdrawals from his prison trust account for photocopy charges he claims he

12 was not obligated to pay. See Compl. at 2‒11; cf. Olson I, Second. Amend. Compl., Doc.

13 No. 17 at 10‒20. Plaintiff contends Olson “told [him] that he would be denying [his] 602

14 because he file[d] to[o] many grievances.” Compl. at 3, 8; cf. Olson I, Doc. No. 17 at 12,

15 13. Plaintiff further alleges that when he told Olson he would submit a retaliation

16 grievance, Olson indicated he would “make sure it won’t get file[d],” and that he would

17 “also send someone to hurt [Plaintiff].” Compl. at 3, 8; cf. Olson I, Doc. No. 17 at 13.

18 The remainder of Plaintiff’s Complaint includes related First Amendment, due

19 process, conspiracy, and access to courts allegations against other RJD correctional and

20 appeals officials who were also previously named as parties in Olson I. See Compl. at 5,

21 12, 15; cf. Olson I, Doc. No. 17 at 2, 10, 16‒20. All these allegations were dismissed sua

22 sponte based on Plaintiff’s failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and

23 § 1915A(b) in Olson I, however. See Olson I, Doc. No. 18. Plaintiff appealed that

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4 “Courts must consider the complaint in its entirety,” including “documents incorporated into the

26 complaint by reference” to be part of the pleading when determining whether the plaintiff has stated a

claim upon which relief may be granted. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

27 (2007); Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ.

P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all

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1 dismissal, but the Ninth Circuit affirmed on all grounds except for the dismissal of

2 Plaintiff’s retaliation claim against Defendant Olson. See Arellano v. California Dep’t of

3 Corr. & Rehab., 693 F. App’x 615, 616 (9th Cir. 2017).5

4 After remand in Olson I, Judge Battaglia granted summary judgment with respect

5 to Plaintiff’s remaining retaliation claims against Olson finding he failed to exhaust them

6 before filing suit as required by 42 U.S.C. § 1997e(a). See Arellano v. Olson, No. 15-

7 CV-2300-AJB-LL, 2019 WL 4594611, at *3 (S.D. Cal. Sept. 23, 2019), aff’d, 837 F.

8 App’x 538 (9th Cir. 2021). In a subsequent Order denying Plaintiff’s Motions for

9 Reconsideration, Judge Battaglia clarified that pursuant to Ninth Circuit precedent, the

10 dismissal of Plaintiff’s retaliation claims against Olson was “without prejudice to filing a

11 new action once administrative remedies ha[ve] been exhausted.” See Arellano v. Olson,

12 No. 15-CV-02300-AJB-LL, 2021 WL 5396424, at *2 (S.D. Cal. Nov. 18, 2021); see also

13 O’Neal v. Solis, 586 F. App’x 440 (9th Cir. 2014) (“Because we affirm on the basis of

14 O’Neal’s failure to exhaust, we treat the judgment as a dismissal without prejudice as to

15 all claims, and do not address O’Neal’s contentions concerning the merits of his claims.”)

16 (citing Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (“[A] district court must

17 dismiss a case without prejudice when there is no presuit exhaustion.” (citation and

18 internal quotation marks omitted)).

19 Thus, Plaintiff now seeks to resurrect the 2014 retaliation claims he first alleged

20 against Defendant Olson in Olson I, claiming he may do so now that he has exhausted his

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23 5 Because all claims alleged in Olson I other than Plaintiff’s retaliation claims against Olson were

dismissed for failing to state a claim and affirmed on appeal, Plaintiff may not relitigate them in this

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action. “[C]laim preclusion . . . prohibits successive litigation of the very same claim by the same

25 parties.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016) (internal quotation marks

omitted). “Claim preclusion, or res judicata, applies where: (1) the same parties, or their privies, were

26 involved in the prior litigation, (2) the prior litigation involved the same claim or cause of action as the

later suit, and (3) the prior litigation was terminated by a final judgment on the merits.” Central Delta

27 Water Agency v. United States, 306 F.3d 938, 952 (9th Cir. 2002). A dismissal for failure to state a

claim is a “judgment on the merits” to which res judicata applies. Federated Dep’t Stores v. Moitie, 452

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1 administrative remedies pursuant to 42 U.S.C. § 1997e(a). See Compl. at 3, 17. In

2 support, Plaintiff attaches copies of his appeal records for CDCR 602 Inmate/Parolee

3 Appeal Log Nos. RJD-C-19-7145 and RJD-C-19-07501. Id., Ex. H at 24‒32.

4 C. Statute of Limitations

5 Statutes of limitation prevent the assertion of stale claims by limiting the time (i.e.,

6 the “limitations period”) within which claims must be filed. See Daviton v.

7 Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1136 (9th Cir. 2001) (en banc). When

8 the running of the statute of limitations is “‘apparent on the face of the complaint,’” it

9 may be dismissed for failing to state a claim. Von Saher v. Norton Simon Museum of Art

10 at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan

11 Bank, 465 F.3d 992, 4997 (9th Cir. 2006)). However, a dismissal based on the statute of

12 limitations is appropriate only if the complaint, read with the required liberality, and any

13 properly judicially noticed documents, would not permit the plaintiff to show tolling. See

14 Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (citation omitted).

15 Because section 1983 contains no specific statute of limitation, federal courts apply

16 the forum state’s statute of limitations for personal injury actions. Soto v. Sweetman, 882

17 F.3d 865, 871 (9th Cir. 2018); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Fink v.

18 Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Federal courts apply the personal injury

19 limitations period for analogous Section 1983 claims arising in California. See Pouncil

20 v. Tilton, 704 F.3d 568, 573 (9th Cir. 2012). California’s applicable statute of limitations

21 is two years. See Cal. Civ. Proc. Code § 335.1; Mills v. City of Covina, 921 F.3d 1161,

22 1166 (9th Cir. 2019); Jones, 393 F.3d at 927.

23 Federal courts also apply the forum state’s law regarding tolling, except where

24 inconsistent with federal law. Wallace v. Kato, 549 U.S. 384, 394 (2007) (citing Hardin

25 v. Straub, 490 U.S. 536, 538–39 (1989)); Mills, 921 F.3d at 1166; Jones, 393 F.3d at 927.

26 Under California law, the statute of limitations for prisoners serving less than a life

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1 sentence is tolled for two years. See Cal. Civ. Proc. Code § 352.1(a); Johnson

2 v. California, 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S.

3 499 (2005). Accordingly, most California prisoners must bring their § 1983 suits within

4 four years—a period comprised of the two-year limitations period plus two additional

5 years based on statutory tolling.

6 “Accrual is the date on which the statute of limitations begins to run . . . .”

7 Lukovsky v. City of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). Unlike the

8 length of the limitations period, however, “the accrual date of a § 1983 cause of action is

9 a question of federal law that is not resolved by reference to state law.” Wallace, 549

10 U.S. at 388; Hardin, 490 U.S. at 543‒44 (federal law governs when a § 1983 cause of

11 action accrues). “Under the traditional rule of accrual . . . the tort cause of action accrues,

12 and the statute of limitation begins to run, when the wrongful act or omission results in

13 damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder federal law, a claim

14 accrues when the plaintiff knows or has reason to know of the injury which is the basis of

15 the action.” Klein v. City of Beverly Hills, 865 F.3d 1276, 1278 (9th Cir. 2017) (citations

16 omitted).

17 In this case, Olson’s wrongful acts of retaliation are alleged to have occurred in

18 June 2014—more than seven years before Plaintiff filed this civil action, and far outside

19 California’s statute of limitations, even including all presumed periods of tolling provided

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22 6 While Plaintiff does not allege he is entitled to statutory tolling pursuant to Cal. Code Regs., § 352.1,

the Court takes judicial notice of his conviction on seven counts of committing a lewd act on a child

23 under 14 in violation of Cal. Pen. Code, §§ 288(a), 1203.066(a)(8), and one count of unlawful sexual

intercourse with a minor more than three years younger than him in violation of Cal. Penal Code

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§ 261.5(c) in California Superior Court Case No. SCE279681. See People v. Arellano, No. D059737,

25 2013 WL 142397, at *1 (Cal. Ct. App. Jan. 14, 2013). Plaintiff was sentenced to a term of 18 years and

8 months, i.e., less than life, as a result of his conviction in that case. Id. Plaintiff has since filed a series

26 of writs of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court seeking to invalidate SCD279681,

but none have proven successful. See, e.g., Arellano v. Unnamed Respondents, S.D. Cal. Civil Case

27 No. 3:14-cv-00937-JAH-KSC; Arellano v. Unnamed Respondents, S.D. Cal. Civil Case No. 3:15-cv-

01045-LAB-DHB; Arellano v. Paramo, S.D. Cal. Civil Case No. 3:16-cv-02337-WQH-MDD; and

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1 by statute, or pending the exhaustion of his administrative remedies. Wallace, 591 U.S.

2 at 391; see also Klein, 865 F.3d at 1278; Cal. Code Civ. Proc. § 335.1 (tolling statute of

3 limitations “for a maximum of 2 years” during a prisoner’s incarceration); Jones, 393

4 F.3d at 927; Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (finding that “the

5 applicable statute of limitations must be tolled while a prisoner completes the mandatory

6 exhaustion process” required by 42 U.S.C. § 1997e(a)).

7 Plaintiff alleges on the face of his newly-filed Complaint to have previously raised

8 these same retaliation claims in Olson I, but is now attempting to relitigate them in this

9 action because they were dismissed without prejudice based on his failure to exhaust

10 them in accordance with 42 U.S.C. § 1997e(a). See Compl. at 3, 17; see also Olson I,

11 2019 WL 2451401, at *7 (S.D. Cal. June 12, 2019), report and recommendation adopted,

12 2019 WL 4594611 (S.D. Cal. Sept. 23, 2019), aff’d, 837 F. App’x 538 (9th Cir. 2021);

13 Olson I, 2021 WL 5396424, at *2 (S.D. Cal. Nov. 18, 2021) (denying Plaintiff’s Motion

14 for Reconsideration, clarifying that his retaliation claims were “dismissed without

15 prejudice,” and that he was free to “file a new action if administrative remedies have

16 indeed been exhausted”). Plaintiff claims he may proceed because he has since

17 exhausted his retaliation claims against Olson.7 See Compl. at 17 & Ex. H at 23‒32,

18 CDCR 602 Appeal Log Nos. RJD-C-19-7145 and RJD-C-19-07501. But even if the

19 Court assumes these grievances together toll the limitations period for an additional 162

20 days—the total time during which both CDCR 602 Appeal Log Nos. RJD-C-19-7145 and

21 RJD-C-19-07501 were pending—Plaintiff’s retaliation claims against Appeals

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7 While the Court may consider whether the time during which CDCR 602 Inmate/Parolee Log

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Nos. RJD-C-19-7145 and RJD-C-19-07501 were pending provides additional tolling of the limitations

25 period for Plaintiff’s retaliation claims against Olson, see Von Saher, 592 F.3d at 969, it need not and

does not determine at this stage of the case whether these appeals—both filed years after the incident in

26 question—are sufficient to show Plaintiff has “properly” exhausted his retaliation claims against Olson

pursuant to 42 U.S.C. § 1997e(a). The Court notes, however, that “[p]roper exhaustion demands

27 compliance with an agency’s deadlines and other procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90‒

91 (2006); see also Jones v. Bock, 549 U.S. 199, 216 (2007) (noting that a prisoner’s failure to exhaust is

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1 Coordinator Olson remain untimely. See Jones, 393 F.3d at 927; Brown, 422 F.3d at

2 943.

3 If allegations on the face of a Complaint “show that relief is barred by the

4 applicable statute of limitations, the complaint is subject to dismissal for failure to state a

5 claim.” Jones v. Bock, 549 U.S. 199, 215 (2007). Here, Plaintiff’s claims far exceed the

6 limitations period. He may overcome this time bar only if his Complaint alleges facts

7 sufficient to show the limitations period may be equitably tolled. See Cervantes, 5 F.3d

8 at 1276‒77; Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th

9 Cir. 1988). The burden is on Plaintiff to plead the facts necessary to support equitable

10 tolling. Hinton v. Pacific Enterprises, 5 F.3d 391, 395 (9th Cir. 1993).

11 Under California law, Plaintiff must meet three conditions to equitably toll the

12 statute of limitations: (1) he must have diligently pursued his claim; (2) his situation must

13 be the product of forces beyond his control; and (3) the Defendant must not be prejudiced

14 by the application of equitable tolling. See Hull v. Central Pathology Serv. Med. Clinic,

15 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State of California, 21

16 Cal.3d 313, 316‒17 (Cal. 1978); Fink, 192 F.3d at 916. As currently pleaded, however,

17 the Court finds Plaintiff has failed to plead any facts which, if proved, would support the

18 equitable tolling of his 2014 claims as provided by California law. See Cervantes, 5 F.3d

19 at 1277.

20 Accordingly, the Court finds Plaintiff’s claims are barred by the statute of

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8 In fact, “[t]here is no clear consensus among Ninth Circuit district courts as to whether a plaintiff is

23 entitled to tolling for grievances that were rejected as untimely under prison regulations.” Garrett

v. Finander, No. 2:18-CV-10754-AB-KES, 2019 WL 7879659, at *11 (C.D. Cal. Dec. 5, 2019) (citing

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cases), report and recommendation adopted, No. 2:18-CV-10754-AB-KES, 2020 WL 606754 (C.D.

25 Cal. Feb. 5, 2020), aff’d, 835 F. App’x 266 (9th Cir. 2021). Plaintiff’s exhibits show CDCR 602

Inmate/Parolee Appeal Log No. RJD-C-19-7145, alleging Olson committed “staff misconduct” on June

26 19, 2014, was submitted by Plaintiff on October 25, 2019, more than five years after the incident which

forms the basis of the retaliation claim alleged in his Complaint. See Compl., Ex. H at 30‒31. This

27 appeal was cancelled pursuant to Cal. Code Regs., tit. 15 § 3084.6(c)(4) on November 15, 2019, because

the “[t]ime limits for submitting the appeal [we]re exceeded even though [Plaintiff] had the opportunity

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1 limitations, his entire Complaint must be dismissed sua sponte in its entirety based on his

2 failure to state a claim upon which section 1983 relief may be granted. See 28 U.S.C.

3 § 1915(e)(2)(B)(ii); 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121;

4 Jones, 549 U.S. at 215.

5 In light of his pro se status, and in order to permit Plaintiff the opportunity to allege

6 additional facts which might support equitable tolling of his claims against Defendant

7 Olson, the Court will permit Plaintiff leave to amend. See Rosati v. Igbinoso, 791 F.3d

8 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint

9 without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely

10 clear that the deficiencies of the complaint could not be cured by amendment.’”) (quoting

11 Akhtar v Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)); see also Cervantes, 5 F.3d at 1276‒

12 77 (where the running of the statute of limitations is apparent on the face of a complaint,

13 dismissal for failure to state a claim is proper, so long as Plaintiff is provided an

14 opportunity to amend to allege facts which, if proved, might support tolling).

15 III. CONCLUSION

16 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28

17 U.S.C. § 1915(a) and DIRECTS the Secretary of the CDCR, or her designee, to collect

18 from Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly

19 payments in an amount equal to twenty percent (20%) of the preceding month’s income

20 and forwarding those payments to the Clerk of the Court each time the amount in the

21 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE

22 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

23 ACTION. The Court DIRECTS the Clerk of the Court to serve a copy of this Order by

24 U.S. Mail on Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento,

25 California, 94283-0001, or by forwarding an electronic copy to

26 trusthelpdesk@cdcr.ca.gov.

27 Further, the Court DENIES Plaintiff’s Motion for Court to Hold Screening Process

28 as moot and DISMISSES Plaintiff’s Complaint sua sponte and in its entirety based on

1 || his failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

2 || §§ 1915(e)(2)(B)(i1) and 1915A(b)(1). The Court GRANTS Plaintiff 60 days leave from

3 || the date of this Order in which to file an Amended Complaint which cures the

4 || deficiencies of pleading noted. Plaintiff's Amended Complaint must be complete by itself

5 || without reference to his original pleading. Defendants not named and any claim not re-

6 || alleged in his Amended Complaint will be considered waived. See CivLR 15.1; Hal

7 || Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)

8 ||(“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d

9 || 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not

10 || re-alleged in an amended pleading may be “considered waived if not repled’’).

11 If Plaintiff fails to file an Amended Complaint within 60 days, the Court will enter

12 final Order dismissing this civil action based both on his failure to state a claim upon

13 || which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and his

14 || failure to prosecute in compliance with a court order requiring amendment. See Lira, 427

15 || F.3d at 1169 (“Ifa plaintiff does not take advantage of the opportunity to fix his

16 ||complaint, a district court may convert the dismissal of the complaint into dismissal of

17 || the entire action.’’).

18 IT IS SO ORDERED.

19 || Dated: February 4, 2022

20 ph Cu -£ ol Lo box

21 HON. MICHAEL M. ANELLO

09 United States District Judge

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