Limpin v. Garland

• Court: District Court, S.D. California
• Decided: August 8, 2022
• Docket: 3:22-cv-01150
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 MELCHOR KARL T. LIMPIN, Case No.: 22-cv-1150-CAB-BGS

10 Plaintiff, ORDER: 11 v. 1) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM 12 MERRICK GARLAND et al., PURSUANT TO 28 U.S.C. § 13 Defendants. 1915(e)(2)(B)(i);

14 AND 15 2) DENYING MOTION TO 16 PROCEED IN FORMA PAUPERIS 17 [Doc. No. 2] AS MOOT. 18 19

20 Plaintiff Melchor Karl T. Limpin filed this civil action against sixteen individuals, 21 including the current and former attorney general of the United States, on August 4, 2022. 22 [Doc. No. 1.] Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) 23 at the time of filing; instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) 24 pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. 25 A complaint filed by any person seeking to proceed IFP pursuant to 28 U.S.C. § 26 1915(a) is subject to sua sponte dismissal if it is “frivolous, malicious, fail[s] to state a 27 claim upon which relief may be granted, or seek[s] monetary relief from a defendant 28 1 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 2 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 3 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 4 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis 5 complaint that fails to state a claim.”); see also Chavez v. Robinson, 817 F.3d 1162, 1167 6 (9th Cir. 2016) (noting that § 1915(e)(2)(B) “mandates dismissal—even if dismissal comes 7 before the defendants are served”). Congress enacted this safeguard because “a litigant 8 whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks 9 an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” 10 Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 11 324 (1989)). 12 Here, Plaintiff’s complaint purports to assert claims under Bivens v. Six Unknown 13 Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), arising out of his 14 arrest and detention by Immigration and Customs Enforcement (“ICE”) in 2015. In 2016, 15 Plaintiff filed a Bivens lawsuit arising out of the same events. See S.D. Cal. Case No. 16- 16 cv-2351-AJB-BLM. The 2016 lawsuit was dismissed by the district judge, and the Ninth 17 Circuit affirmed that dismissal on appeal. See Doc. Nos. 40, 47 from S.D. Cal. Case No. 18 16-CV-2351. The Ninth Circuit also rejected “as meritless Limpin’s contention that he 19 should have been granted leave to amend.” After the mandate from the Ninth Circuit was 20 entered on the docket of Plaintiff’s 2016 case, Plaintiff attempted to file an amended 21 complaint, which was stricken. The complaint here is simply Plaintiff’s renewed effort to 22 litigate the same claims, with Plaintiff conceding that this case is a “refiling” of the 2016 23 lawsuit. 24 Plaintiff contends that res judicata or claim preclusion do not apply because the 25 district court dismissed the 2016 lawsuit without prejudice. The Court need not address 26 Plaintiff’s argument, however, because even if res judicata does not apply, the complaint 27 is subject to sua sponte dismissal because it is time-barred. The statute of limitations for 28 Bivens claims in California is two years. See Yasin v. Coulter, 449 F. App'x 687, 689 (9th 1 || Cir. 2011). Because Plaintiff did not file this complaint until more than seven years after 2 ||the actions of which he complains, it is barred by the statute of limitations. Thus, his 3 || “complaint has no arguable basis in law or fact,” and is subject to dismissal pursuant to 28 4 ||U.S.C. § 1915(e). Baker v. Farris, 936 F.2d 576 (Table), 1991 WL 113811 (9th Cir. 1991) 5 || (affirming sua sponte dismissal of time-barred § 1983 action as frivolous).' 6 In light of the foregoing, it is hereby ORDERED that the complaint is DISMISSED 7 |{as frivolous under 28 U.S.C. § 1915(e)(2)(B)G), and the application to proceed IFP is 8 || DENIED AS MOOT. This case is CLOSED, and any further filings will be rejected. 9 It is SO ORDERED. 10 Dated: August 8, 2022 (6 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ' Because it was dismissed pursuant to Federal Rule of Civil Procedure 4(m), the statute of limitations 27 || was not tolled during the pendency of the 2016 lawsuit. See Federal Rule of Civil Procedure 4(m) 9g || Advisory Committee Notes (stating that that relief from Rule 4(m) could be justified “if the applicable statute of limitations would bar the refiled action”).