Summary
noting that a petitioner's attorney's negligence with regard to calculating the limitations period generally "do[es] not constitute [an] extraordinary circumstance[] sufficient to warrant equitable tolling," and finding that the "alleged dereliction of [a]n inmate legal assistant is even less compelling."
Summary of this case from Keesling v. McEwenOpinion
Civil No. 02-847-AS.
March 29, 2004
ORDER
On January 16, 2004, Magistrate Judge Ashmanskas issued a Findings and Recommendation (doc. # 40) recommending that the Petition for Writ of Habeas Corpus (doc. #2) and petitioner's Motion to Grant Petition Forthwith and Alternative Motion for Evidentiary Hearing (doc. #27) be denied. Petitioner filed timely objections to this Findings and Recommendation. When a party objects to any portion of the Magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate's report. 28 U.S.C. § 636(b)(1)(B); McDonnell Douglas Corporation. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981).
This court has reviewed the Record and the Magistrate Judge's Findings and Recommendation. Petitioner's objections first assert that the Magistrate Judge overlooked his argument that the inmate legal assistants who allegedly were grossly negligent in their work with petitioner should be construed as "agents of the state." As agents or "state officials," their negligent performance should have given rise to a finding that equitable tolling applied in this case, argues petitioner.
This court disagrees that the Magistrate Judge failed to address this argument, or that it is meritorious. The Findings and Recommendation provides a citation to Frye v. Hackman, 273 F.3d 1144, 1145 (9th Cir. 2001), cert. denied, 535 U.S. 1055 (2002), in which the Ninth Circuit addresses equitable tolling under circumstances involving an attorney representing a petitioner. "We conclude that the miscalculation of the limitations period by Frye's counsel and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling." Id. (citation omitted).
After citing this authority, the Magistrate Judge reasoned that the "[alleged] dereliction of An inmate legal assistant is even less compelling." Findings and Recommendation at 6. This court agrees. The reiteration that the legal assistants were employees of the state is unpersuasive. The authority relied upon by petitioner is distinguishable. In Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), the Ninth Circuit held that "Although equitable tolling is unavailable in most cases," the doctrine was available in that case because the petitioner was aware of his filing responsibilities and attempted to be in compliance with the applicable statutes of limitation, only to be thwarted by the refusal by prison officials to properly draw funds from his trust account for his petition and to mail the application, despite the petitioner's timely submission of it. Id. Such compelling grounds for applying the doctrine of equitable tolling are absent here.
Petitioner also complains that the Magistrate Judge failed to address his argument that the state was negligent in failing to stock the prison law library adequately. This court has conducted a de novo review of the Record, and has considered the state's counter-affidavits regarding the status of the library's stocks. Petitioner relies upon Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) ( en banc) for the proposition that an inadequately supplied library may amount the extraordinary circumstances necessary for applying the equitable tolling doctrine. However, as stated in Frye, the Whalem/Hunt court "rejected the argument that lack of access to library materials automatically qualified as grounds for equitable tolling, and we emphasized the importance of a more fact-specific inquiry." Frye, 273 F.3d at 1146, citing Whalem/Hunt, 233 F.3d at 1148.
After considering all of the evidence presented, this court agrees with the Magistrate Judge that no grounds have been presented by the petitioner warranting the application of the equitable tolling doctrine, the granting of the petition, or an evidentiary hearing regarding these matters. The Magistrate Judge's Findings and Recommendation is well-reasoned and is adopted. CONCLUSION
Magistrate Judge Ashmanskas's Findings and Recommendation (doc. # 40) is adopted. The Petition for Writ of Habeas Corpus (doc. #2) and petitioner's Motion to Grant Petition Forthwith and Alternative Motion for Evidentiary Hearing (doc. #27) are denied and this action is dismissed.
IT IS SO ORDERED.