Opinion
No. 2:16-cv-0547 AC P
06-07-2016
ALBERT J. HAMILTON, Plaintiff, v. URBAN, et al., Defendants.
ORDER
Plaintiff, a state prisoner proceeding pro se, requests that this civil rights action, filed March 15, 2016, be dismissed without prejudice due to "some evidence problems." ECF No. 13 at 1. Plaintiff requests that he be permitted to re-file this action in one year. Id.
Plaintiff's request to voluntarily dismiss this action without prejudice will be granted. See Fed. R. Civ. P. 41(a). However, it will be plaintiff's responsibility to timely re-file this action. Plaintiff is directed to the following considerations concerning the statute of limitations.
"For actions under 42 U.S.C. § 1983, [federal] courts apply the forum state's statute of limitations for personal injury actions, along with the forum state's law regarding tolling, including equitable tolling, except to the extent any of these laws is inconsistent with federal law." Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). In California, the statute of limitations for personal injury actions is two years. See Cal. Code Civ. Proc. § 335.1. This limitations period is statutorily tolled for another two years for prisoners serving less than a life sentence, resulting in a total limitations period of four years; however, prisoners serving life sentences are not entitled to this statutory tolling. See Cal. Civ. Proc. Code § 352.1(a). Finally, "[a]lthough state law determines the length of the limitations period, federal law determines when a civil rights claim accrues," Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002) (citation and internal quotation marks omitted), and hence when the statute of limitations begins to run. "Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).
Accordingly, as requested by plaintiff, IT IS HEREBY ORDERED that this action is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a). DATED: June 7, 2016
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE