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 DISMISSING CIVIL

Plaintiff,

13 ACTION FOR FAILURE TO STATE

v. CLAIM PURSUANT TO 28 U.S.C.

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§ 1915(e)(2)(B) AND 28 U.S.C.

R. OLSON, Appeals Coordinator,

15 § 1915A(b)

Defendant.

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[Doc. No. 8]

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

19 Prison (“RJD”), proceeding pro se and in forma pauperis (“IFP”), is a frequent litigator in

20 this district. This case, filed on September 28, 2021, is his attempt to relitigate retaliation

21 claims against RJD Appeals Coordinator R. Olson which arose in 2014, but were

22 dismissed without prejudice based on Arellano’s failure to exhaust them prior to the

23 filing of a previous case, Arellano v. Self, et al., S.D. Cal. Civil Case No. 3:15-cv-2300-

24 AJB-LL (“Olson I”).1

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1 Arellano continues to admit his retaliation claims against Olson were “priorly [sic] litigated” in Olson

27 I, S.D. Cal. Civil Case No. 3:15-cv-2300-AJB-LL. See FAC at 6. But even if he had not, the Court may

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

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1 I. PROCEDURAL BACKGROUND

2 On February 4, 2022, the Court sua sponte dismissed Arellano’s Complaint

3 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, because it was apparent from the face of

4 his pleading that his claims are untimely. See Doc. No. 7 at 7‒11. Nevertheless, the

5 Court granted Arellano leave to amend and “the opportunity to allege additional facts

6 which might support equitable tolling.” Id. at 11 (citing Cervantes v. City of San Diego,

7 5 F.3d 1273, 1275 (9th Cir. 1993)). Arellano has since filed an Amended Complaint

8 (“FAC”) reasserting the 2014 retaliation claim previously alleged in Olson I, and

9 rehashing his myriad unsuccessful efforts to exhaust those claims via the CDCR’s inmate

10 grievance procedures. See FAC, Doc. No. 8 at 6‒14. In short, Arellano contends

11 “equitable tolling should be granted because (1) [he] diligently pursue[d] [his] claim;

12 [and] (2) things were beyond [his] control.” Id. at 16.

13 However, because Arellano’s’ allegations fail to support any plausible basis for

14 equitable tolling, the Court now dismisses his FAC sua sponte pursuant to 28 U.S.C.

15 § 1915(e)(2) and § 1915A(b) for failure to state a claim upon which § 1983 relief can be

16 granted, denies further leave to amend as futile, and dismisses this action in its entirety.

17 II. SCREENING PER 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b)

18 A. Standard of Review

19 Because he is a prisoner and proceeding IFP, Arellano’s Amended Complaint, like

20 his original, requires a preliminary screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

21 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP

22 complaint, or any portion of it that is frivolous, malicious, fails to state a claim, or seeks

23 damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126‒27

24 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621

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

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

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

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1 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of

2 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the

3 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014)

4 (citation omitted).

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

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

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

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

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

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

11 12(b)(6)”). Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to

12 “contain sufficient factual matter, accepted as true, to state a claim to relief that is

13 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

14 marks omitted); Wilhelm, 680 F.3d at 1121.2

15 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

16 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

17 Iqbal, 556 U.S. at 678. The court “ha[s] an obligation where the petitioner is pro se,

18 particularly in civil rights cases, to construe the pleadings liberally and to afford the

19 petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

20 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). However, it

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23 2 “Courts must consider the complaint in its entirety,” including “documents incorporated into the

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

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

25 (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

26 purposes.”). The Court may also take judicial notice of proceedings in other courts “if those proceedings

have a direct relation to the matters at issue.” Bias, 508 F.3d at 1225; see also Est. of Blue v. County of

27 Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997) (taking judicial notice 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

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1 may not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of

2 Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

3 B. Factual Allegations & Prior Litigation History

4 Arellano’s Amended Complaint, like his original, names only RJD Appeals

5 Coordinator R. Olson as a Defendant, and his retaliation claims remain largely identical

6 to those first alleged in the Second Amended Complaint (“SAC”) he filed in July 2016 in

7 Olson I.3 See FAC at 6‒14; cf. Olson I, Doc. No. 17 at 11‒13. Specifically, Plaintiff

8 realleges Olson retaliated against him during a June 19, 2014 interview related to a series

9 of duplicate CDCR 602 Inmate/Parolee grievances he filed regarding “illegal”

10 withdrawals from his prison trust account for photocopy charges he claims he was not

11 obligated to pay. See FAC at 6; cf. Olson I, Doc. No. 17 at 10‒20.

12 Arellano contends Olson “told [him] not to file or submit” any more grievances,

13 complained that he filed too many of them, and informed him that his previously filed

14 duplicative grievances (CDCR 602 Log Nos. 14-1338, 14-1491, 14-1630, 14-1636, 14-

15 1637) would all be denied. See FAC at 8‒9, 15; cf. Olson I, SAC, Doc. No. 17 at 12‒14.

16 While not previously alleged in his SAC in Olson I, Arellano further contends in this case

17 that when he told Olson he would nevertheless submit another grievance alleging

18 retaliation, Olson indicated he would “not receive a response,” and that he would “also

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21 3 As the Court noted in its February 4, 2022 screening Order, Arellano’s original Complaint in this case

also referenced related retaliation, due process, conspiracy, and access to courts claims against other

22 RJD correctional and appeals officials also previously alleged and dismissed in Olson I. See Doc. No. 7

at 5‒6 & n.5. Because all claims alleged in Olson I other than Plaintiff’s retaliation claims against Olson

23 were dismissed for failing to state a claim and affirmed on appeal, the Court found he may not relitigate

them in this action. “Claim preclusion generally refers to the effect of a prior judgment in foreclosing

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successive litigation of the very same claim, whether or not re-litigation of the claim raises the same

25 issues as the earlier suit.” New Hampshire v. Maine, 532 U.S. 742, 748 (2001). “Claim preclusion, or

res judicata, applies where: (1) the same parties, or their privies, were involved in the prior litigation,

26 (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 Water Agency v. United

27 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 U.S. 394, 399 n.3 (1981);

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1 send someone to hurt [him].” FAC at 15. On July 4, 2014, Arellano contends he did file

2 a retaliation grievance against Olson, but claims it “never got filed,” and he “never

3 received a response back.” Id. at 15‒16. Arellano claims that “instead [Olson] sen[t] an

4 inmate to hit [him] and warn [him]” “not to submit such a grievance again.” Id.5

5 Arellano’s Amended Complaint continues to acknowledge Judge Battaglia has

6 already entered summary judgment with respect to his retaliation claims against Olson

7 based on his failure to exhaust them before he first filed Olson I in 2015. See FAC at 15;

8 Arellano v. Olson, No. 15-CV-2300-AJB-LL, 2019 WL 4594611, at *3 (S.D. Cal. Sept.

9 23, 2019), aff’d, 837 F. App’x 538 (9th Cir. 2021). In a subsequent Order denying

10 Arellano’s motion for reconsideration, Judge Battaglia clarified that pursuant to Ninth

11 Circuit precedent, the dismissal of Arellano’s retaliation claims against Olson was

12 “without prejudice to filing a new action once administrative remedies ha[ve] been

13 exhausted.” See Arellano v. Olson, No. 15-CV-02300-AJB-LL, 2021 WL 5396424, at *2

14 (S.D. Cal. Nov. 18, 2021) (emphasis added); see also O’Neal v. Solis, 586 F. App’x 440

15 (9th Cir. 2014) (“Because we affirm on the basis of O’Neal’s failure to exhaust, we treat

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18 4 Arellano did claim Olson misled and otherwise prevented him from “sending the retaliation 602 after

[he] got punch[ed]” in his Opposition to Defendant’s Motion for Summary Judgment in Olson I. See

19 Olson I, Doc. No. 61 at 16. However, Judge Battaglia adopted the magistrate judge’s finding that “these

allegations [were] contradicted by the record,” and concluded Olson was entitled to summary judgment

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because there was “no evidence” in the record to show administrative remedies were “effectively

21 unavailable with respect to [Arellano’s] retaliation claims.” Id., Doc. No. 68 at 11‒12; Doc. No. 82 at

6‒7.

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5 Arellano attaches a copy of a CDCR 602 Inmate/Parolee Appeal Form dated July 4, 2014 complaining

23 that Olson was “impeding [him]” by entering “inappropriate denials of [his] 602’s,” mentioning CDCR

Log Nos. 14-1491, 14-1630, 14-1636, and 14-1637, and Olson’s June 19, 2019 interview. See FAC at

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15, Ex. E, Doc. No. 8-1 at 2‒4. However, this grievance is not documented as being received, bypassed,

25 rejected, cancelled, or accepted at the First Level of Review, and it includes no CDCR 602

Inmate/Appeal Tracking Log Number. Nor does it include any allegation that Olson targeted him for

26 attack by a fellow inmate should he continue to file grievances. In fact, Exhibit E appears to be the same

Exhibit E he filed in opposition to Defendant’s Motion for Summary Judgment in Olson I, where the

27 Court also noted it appeared to have been “unsubmitted” and found it insufficient to show Arellano

“ever filed a grievance related to his retaliation claim.” See Olson I, Doc. No. 68 at 11 & n.2, see also

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1 the judgment as a dismissal without prejudice as to all claims, and do not address

2 O’Neal’s contentions concerning the merits of his claims.”) (citing Lira v. Herrera, 427

3 F.3d 1164, 1170 (9th Cir. 2005) (“[A] district court must dismiss a case without prejudice

4 when there is no pre-suit exhaustion.” (citation and internal quotation marks omitted)).

5 In the original Complaint Arellano filed in this case, he alleged his 2014 retaliation

6 claims against Defendant Olson could proceed afresh because after the entry of summary

7 judgment in Olson I on September 23, 2019, and before he filed this suit on September

8 28, 2021, he exhausted his retaliation claims against Olson. See Compl. at 3, 17. In

9 support, Arellano attached CDCR 602 Inmate/Parolee Appeal Log No. 19-7145 and 19-

10 7501. Id., Ex. H at 24‒32. The Court considered both these appeals in its February 4,

11 2022 Order, and assumed without deciding that these two grievances could potentially

12 toll the limitations period for 162 days.6 See Doc. No. 7 at 9‒10 & n.7. However,

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6 The Court noted, however, that while it would “consider whether the time during which CDCR 602

15 Inmate/Parolee Log Nos. RJD-C-19-7145 and RJD-C-19-7501 were pending” might entitle Arellano to

tolling, see Olson I, Doc. No. 7 at 9 (citing Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (finding

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

17 exhaustion process”), these appeals were filed several years after the 2014 incident which forms the

basis of this suit, were cancelled and dismissed for violating Cal. Code Regs., tit. 15 § 3084.6(c)(4)’s

18 time constraints, see Doc. No. 1, Ex. H at 23-32, and would likely be found insufficient to satisfy

§ 1997e(a)’s exhaustion requirement even if the revived retaliation alleged in this case were not time-

19 barred. See Olson I, Doc. No. 7 at 9 (citing Woodford v. Ngo, 548 U.S. 81, 90‒91 (2006) (finding that

“[p]roper exhaustion demands compliance with an agency’s deadlines and other procedural rules.”).

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The Court nevertheless granted Arellano the benefit of the doubt and added the 162 days RJD-C-19-

21 7145 and RJD-C-19-7501 were pending to the tolling period even though “[t]here is no clear consensus

among Ninth Circuit district courts as to whether a plaintiff is entitled to tolling for grievances that were

22 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 cases), report and recommendation adopted,

23 No. 2:18-CV-10754-AB-KES, 2020 WL 606754 (C.D. Cal. Feb. 5, 2020), aff’d, 835 F. App’x 266 (9th

Cir. 2021). Arellano’s exhibits show he submitted CDCR 602 Inmate/Parolee Appeal Log No. RJD-C-

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19-7145, alleging Olson committed “staff misconduct” on June 19, 2014, on October 25, 2019, more

25 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 appeal was cancelled pursuant to Cal. Code Regs., tit. 15 §

26 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 to submit within the prescribed [30-day] time

27 constraints.” Id. at 29, 30. Arellano responded by filing CDCR 602 Inmate/Parolee Appeal Log No.

RJD-C-19-7501 on November 21, 2019, “appealing the cancellation of 19-07145,” including allegations

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1 because it was still clear from the face of his Complaint that Arellano’s retaliation claims

2 against Olson remained untimely, “even including all presumed periods of tolling provide

3 by statute, or pending the exhaustion of his administrative remedies[,]” as he claimed was

4 evidenced by CDCR 602 Inmate/Parolee Appeal Log No. 19-7145 and 19-7501, the

5 Court dismissed his claims as time-barred, and permitted him leave to amend and include

6 “facts, which if proved, would support the equitable tolling of his 2014 claims as

7 provided by California law.” See Doc. No. 7 at 10‒11 (citing Cervantes, 5 F.3d at 1276‒

8 77).

9 In his FAC, Arellano again mentions Log Nos. 19-7145 and 19-7501, but he

10 further broadens his basis for tolling and argues the limitations period for his 2014

11 retaliation claim against Olson should instead be tolled for four full years, specifically

12 “throughout 2015 [to] 11-12-19[,]” and including all the time the grievances which were

13 subject to Defendant’s Motion for Summary Judgment in Olson 1 were pending.

14 Arellano seeks to toll the limitations period during that time because while Judge

15 Battaglia found he failed to properly exhaust his retaliation claims before he filed suit in

16 Olson I, Arellano “thought [he] was right” and relied on Olson’s June 19, 2014’s

17 representations that there was no need to file a separate grievance alleging retaliation in

18 addition to those he had previously filed—namely CDCR 602 Log Nos. 14-1338, 14-

19 1491, 14-1630, 14-1636, 14-1637, 14-1742. See FAC 7‒11, 13‒17.

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untimeliness be excused. Id. at 27. The first level of appeal was bypassed, and Log No. RJD-C-19-

23 7501 was denied at Second Level of Review on December 31, 2019. Id. at 25‒26. The Second Level

Appeal Response noted Arellano’s claim of having been punched by another inmate, but affirmed the

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cancellation of Log No. 19-7145 as untimely, noting specifically that the appeal addressed “only . . . the

25 cancellation decision on the previous appeal, and not the merits of that appeal.” Id. at 26. The Second

Level Response further noted Log No. 19-7145 had been “forwarded to the Hiring Authority for

26 determination of a staff complaint,” but it was found not to meet that criteria and was instead “processed

as routine.” Id. Arellano again appealed to the Office of Appeals (“OOA”), but received a letter dated

27 April 30, 2020, informing him that “[d]ue to time constraints, OOA w[ould] not be issuing a Third Level

Response” and that instead, the December 31, 2019 Second Level Response would “serve[] as the

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1 C. Statute of Limitations & Statutory Tolling

2 As the Court noted in its February 4, 2022 Order, statutes of limitation prevent the

3 assertion of stale claims by limiting the time within which claims must be filed. See

4 Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1136 (9th Cir. 2001) (en

5 banc). When the running of the statute of limitations is “‘apparent on the face of the

6 complaint,’” it may be dismissed for failing to state a claim. Von Saher v. Norton Simon

7 Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase

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

9 statute of limitations is appropriate only if the complaint, read with the required liberality,

10 and any properly judicially noticed documents, would not permit the plaintiff to show

11 tolling. See Cervantes, 5 F.3d at 1275 (citation omitted).

12 “The statute of limitations for federal civil rights claims under section[] … 1983 …

13 is ‘governed by the forum state’s statute of limitations for personal injury actions.’”

14 Bonelli v. Grand Canyon Univ., 28 F.4th 948, 951–52 (9th Cir. 2022) (quoting Bird v.

15 Dep’t of Human Servs., 935 F.3d 738, 743 (9th Cir. 2019) (per curiam) (quotation marks

16 and alterations omitted)); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir.

17 2004). California’s applicable statute of limitations is two years. See Cal. Civ. Proc.

18 Code § 335.1; Mills v. City of Covina, 921 F.3d 1161, 1166 (9th Cir. 2019).

19 Federal courts also apply the forum state’s law regarding tolling. Wallace v. Kato,

20 549 U.S. 384, 394 (2007) (citing Hardin v. Straub, 490 U.S. 536, 538–39 (1989)); Mills,

21 921 F.3d at 1166. Under California law, the statute of limitations for prisoners serving

22 less than a life sentence is tolled for two years. See Cal. Civ. Proc. Code § 352.1(a);

23 Johnson v. California, 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds,

24 543 U.S. 499 (2005). Accordingly, most California prisoners must bring their § 1983

25 suits within four years of accrual—a period comprised of the two-year limitations period

26 plus two additional years based on statutory tolling.

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

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

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

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

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

4 action accrues).

5 Here, it remains clear from the face of Arellano’s FAC that his retaliation claim

6 against Olson accrued on June 19, 2014—the day he alleges Olson told him he would:

7 (1) “den[y] [his] 602” “about a money transaction matter” because he “file[d] too many

8 grievances;” (2) indicated any additional grievance Arellano submitted alleging

9 retaliation would not “get file[d],” and (3) threatened to “send someone to hurt [him].”

10 See FAC at 6; see also Klein v. City of Beverly Hills, 865 F.3d 1276, 1278 (9th Cir. 2017)

11 (“Under federal law, a claim accrues when the plaintiff knows or has reason to know of

12 the injury which is the basis of the action.”) (citations omitted).

13 While Arellano again does not allege any entitlement to statutory tolling pursuant

14 to Cal. Code Regs., § 352.1, the Court takes judicial notice of his conviction on seven

15 counts of committing a lewd act on a child under 14 in violation of Cal. Pen. Code,

16 §§ 288(a), 1203.066(a)(8), and one count of unlawful sexual intercourse with a minor

17 more than three years younger than him in violation of Cal. Penal Code § 261.5(c) in

18 California Superior Court Case No. SCE279681. See People v. Arellano, No. D059737,

19 2013 WL 142397, at *1 (Cal. Ct. App. Jan. 14, 2013). Arellano was sentenced to a term

20 of 18 years and 8 months, i.e., less than life, as a result of his conviction in that case. Id.

21 Therefore, the Court presumes he is entitled to 2 years of statutory tolling pursuant to

22 Cal. Code Civ. Proc. § 352.1 and that therefore, the limitations period for filing his

23 retaliation claims against Olson expired on or about June 20, 2018.

24 If allegations on the face of a complaint “show that relief is barred by the

25 applicable statute of limitations, [it] is subject to dismissal for failure to state a claim.”

26 Jones v. Bock, 549 U.S. 199, 215 (2007). Because Arellano’s FAC, like his original

27 Complaint, seeks to assert stale claims, he may proceed only if his FAC also alleges facts

28 sufficient to support some further basis for equitable tolling. See Cervantes, 5 F.3d at

1 1276‒77; Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999); Bacon v. City of Los

2 Angeles, 843 F.2d 372, 374 (9th Cir. 1988). It does not.

3 D. Equitable Tolling

4 Arellano contends “equitable tolling should be granted because [he] (1) diligently

5 pursu[ed] [his] claim,” and “things were beyond [his] control.” See FAC at 16. The

6 burden is on Arellano to plead the facts necessary to support equitable tolling. Hinton v.

7 Pacific Enterprises, 5 F.3d 391, 395 (9th Cir. 1993).

8 Under California law, Arellano must meet three conditions to equitably toll the

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

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

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

12 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State of California, 21

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

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

15 equitable tolling of his 2014 retaliation claims as provided by California law. See

16 Cervantes, 5 F.3d at 1277.

17 First, the statute of limitations is tolled for the time it takes for a prisoner to

18 administratively exhaust his underlying grievance. See Brown v. Valoff, 422 F.3d 926,

19 942-43 (9th Cir. 2005) (“the applicable statute of limitations must be tolled while a

20 prisoner completes the mandatory exhaustion process”). In this case, the only grievances

21 that plausibly supports the equitable tolling of Arellano’s retaliation claims against Olson

22 are the ones he filed after Judge Battaglia dismissed Olson I: RJD CDCR Inmate/Parolee

23 Log Nos. 19-7145 and 19-7501. See Doc. No. 1, Ex. H at 23‒32. As noted in the Court’s

24 February 4, 2022 Order, however, these grievances would only potentially toll the

25 limitations period for a total of 162 days. See Doc. No. 7 at 9‒10; see also infra n.6.

26 Arellano is not entitled to any additional tolling based on the grievances he alleges

27 to have filed in 2014, see FAC at 7‒11, 13‒17 (discussing CDCR 602 Log. Nos. 14-1338,

28 14-1491, 14-1630, 14-1636, 14-1637, 14-1742, 14-2623, 14-2408), as these grievances

1 related to “disputed debits to [Arellano’s] prisoner trust account,” and “none of [them]

2 contain[ed] allegations Defendant [Olson] retaliated against him.” See Olson I, Doc.

3 No. 68 at 8. Thus, because the 2014 grievances involved issues “separate and distinct

4 from [Olson’s] alleged retaliation against him,” id., they do not serve to “complete[] the

5 mandatory exhaustion process” for the untimely retaliation claims he now attempts to

6 bring before the Court, and thus do not provide any additional basis for tolling under

7 Brown. See 422 F.3d at 942‒43; see also Holguin v. Madera Cnty. Jail Captain, 2015,

8 No. 1:21-CV-01586-GSA-PC, 2022 WL 2360455, at *4 (E.D. Cal. June 29, 2022)

9 (dismissing pretrial detainee’s time-barred access to courts claims sua sponte pursuant to

10 28 U.S.C. § 1915(e)(2) and § 1915A, finding it clear from the face of his complaint that

11 “the limitations period was not tolled beyond four years while Plaintiff exhausted his

12 remedies because he did not exhaust his remedies.”) (emphasis added). To put it simply,

13 Brown does not permit Arellano to toll the limitations period for time spent filing and

14 pursuing grievances unrelated to his underlying retaliation claim for relief against

15 Defendant Olson.

16 Nor is Arellano entitled to toll the limitations period “throughout 2015 [to] 11-12-

17 19”—the time during which Olson I was pending.7 See Wood v. Elling Corp., 20 Cal.3d

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7 While Judge Battaglia granted summary judgment and dismissed Olson I on September 23, 2019 based

21 on Arellano’s failure to exhaust his administrative remedies before he filed that suit on October 13,

2015, see Olson I, Doc. Nos. 1, 82, 84, Judge Battaglia issued a subsequent order in response to

22 Arellano’s post-judgment motion on November 19, 2019, that “clarifi[ed] that [Arellano’s] Second

Amended Complaint [wa]s dismissed without leave to amend, and without prejudice to filing a new

23 action once administrative remedies have indeed been exhausted.” See Olson I, Doc. No. 91 at 1‒2.

Judge Battaglia was correct to note that the Ninth Circuit considers the failure to exhaust to constitute a

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dismissal without prejudice to re-filing considered to be “without prejudice.” Wyatt v. Terhune, 315

25 F.3d 1108, 1120 (9th Cir. 2003) (“If the district court concludes that the prisoner has not exhausted

nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice.”) (citation omitted),

26 overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc). Nevertheless,

Arellano’s retaliation claim against Olson—regardless of whether it was previously dismissed without

27 prejudice—must also be filed within the limitations period provided by state law. See e.g., Semtek Int’l

Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505–06 (2001) (noting that while the “primary meaning of

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1 353, 142 Cal. Rptr. 696, 572 P.2d 755, 759 (1977) (equitable tolling based on successive

2 claims in same forum is permitted only where, inter alia, the trial court erroneously

3 dismissed first action and dilatory tactics by defendant prevented disposition of the first

4 action in time to permit filing of second action within the limitations period). Here,

5 Arellano has not and cannot now show that Olson I was “erroneously dismissed” because

6 that case has been affirmed on appeal. See Arellano v. Olson, 837 F. App’x 538, 539 (9th

7 Cir. 2021) (“The district court properly granted summary judgment because Arellano

8 failed to exhaust his administrative remedies and failed to raise a genuine dispute of

9 material fact as to whether administrative remedies were effectively unavailable.”).

10 Moreover, Arellano acknowledges he “filed 15-cv-2300-AJB and [] continue[d]

11 litigating that lawsuit without inquiring into exhaustion of administrative remedies,” and

12 acknowledges Judge Battaglia “decided that [he] failed to exhaust” on summary

13 judgment, and that he further denied Arellano’s subsequent motion seeking

14 reconsideration. See FAC at 16. In fact, this Court takes judicial notice of the pleadings

15 and Judge Battaglia’s orders in Olson I and notes Judge Battaglia specifically considered

16 Arellano’s renewed claims of having exhausted his 2014 retaliation claim against Olson

17 via Log Nos. 14-1338, 14-1491, and 14-1742, and his claims of having submitted a

18 separate grievance against Olson in July 2014, and to have received no response except a

19 “punch” for it. Critically, however, Judge Battaglia found these very allegations

20 contradictory and wholly unsubstantiated by the record. See Olson I, Doc. No. 68 at 11

21 (finding “no evidence” to support Arellano’s claims of “ever [having] filed a grievance

22 related to his retaliation claim or any evidence [that] prison officials misled [him] into not

23 properly pursuing and then exhausting one.”); Doc. No. 82 at 6‒7 (finding Arellano’s

24 account of having filed a retaliation grievance against Olson, having been “punched for

25 it,” and having never received a response “unsupported by admissible evidence and

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same court, with the same underlying claim,” plaintiff must nevertheless “refil[e] the lawsuit within the

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1 plainly contradictory.”).

2 Thus, based on the face of the pleadings in this case, and the proceedings in Olson

3 I which are both incorporated by reference in Arellano’s FAC and properly subject to

4 judicial notice, the Court finds California’s limitations period for Arellano’s retaliation

5 claim against Olson began to run on or about June 20, 2016, two years after his claim

6 first accrued on June 19, 2014. See Lukovsky, 535 F.3d at 1048; Klein, 865 F.3d at 1278.

7 The Court further finds the limitations period was tolled for an additional two years

8 pursuant to Cal Code Civ. Proc. § 352.1, because Arellano was and remains incarcerated

9 for a term of less than life, and thus ended on or about June 20, 2018. See Johnson, 207

10 F.3d at 654.

11 Assuming Arellano is entitled to tack on an additional 162 days of tolling for the

12 total time CDCR Inmate Parolee Log Nos. 19-7145 and 19-7501 were pending, see

13 Brown, 422 F.3d at 942‒43, the limitations period for filing his retaliation claims against

14 Olson expired on or about November 29, 2018. Arellano filed this case nearly three

15 years too late on September 28, 2021, and he has alleged no additional facts in his FAC,

16 which if proved, would support any further basis for equitable tolling under California

17 law. See Cervantes, 5 F.3d at 1277.

18 For these reasons, Arellano’s FAC must also be dismissed sua sponte for failing to

19 allege a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C.

20 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d

21 at 1121.

22 E. Leave to Amend

23 Because Arellano has already been provided a short and plain explanation of his

24 retaliation claims’ untimeliness, as well as an opportunity to amend in order to plead facts

25 which might entitle him to tolling to no avail, the Court finds granting Arellano further

26 leave to amend would be futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112,

27 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the denial of . . .

28 leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco

| || Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the

2 || plaintiff has previously been granted leave to amend and has subsequently failed to add

3 || the requisite particularity to its claims, [t]he district court’s discretion to deny leave to

4 ||amend 1s particularly broad.” (internal quotation marks omitted) (second alteration in

5 || original)).

6 III. CONCLUSION

7 Accordingly, the Court DISMISSES this civil action without further leave to

8 ||amend as barred by the statute of limitations and for failure to state a claim upon which

9 || § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ai) and § 1915A(b)(1),

10 || CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C.

11 |} § 1915(a)(3), and DIRECTS the Clerk of Court to enter a final judgment of dismissal

12 |/and close the file.

13 IT IS SO ORDERED.

14 || Dated: August 31, 2022

15 BMaidek lu - /hihter

16 HON. MICHAEL M. ANELLO

17 United States District Judge

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