FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner, currently incarcerated at California State Prison-Solano. Plaintiff proceeds, in forma pauperis and without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983.

Throughout the course of this action, plaintiff has alleged that sole defendant Officer Bautista, a police officer with the City of Vallejo Police Department, used excessive force during the course of plaintiff's arrest by kicking plaintiff in the jaw. Defendant Bautista eventually filed a motion for summary judgment, in which he asserted the absence of any genuine dispute regarding the fact that he (Bautista) did not kick plaintiff in the jaw. (ECF No. 60.) The court conducted an initial review of the materials submitted by the parties in support of, and in opposition to, the motion for summary judgment. Upon concluding its review, the court noted that — at least according to a police report submitted by defendant in support of his summary judgment motion — the individual who kicked plaintiff in the jaw may have been one Corporal Estudillo (a non-party), rather than defendant Bautista. (See ECF No. 69.) Out of an abundance of caution, the court granted plaintiff leave to file an amended complaint naming Estudillo as an additional defendant. (Id.)1

In response to the court's order, plaintiff filed a motion to amend the complaint, together with a proposed amended complaint. (ECF No. 70.) Notably, in his proposed amended complaint, plaintiff chose to proceed solely against Corporal Estudillo, rather than against both Estudillo and Bautista. (See ECF No. 71.) Defendant Bautista timely filed an opposition to plaintiff's motion to amend. (ECF No. 72.) Plaintiff failed to file a reply.

Defendant argues in his opposition that the applicable statute of limitations has run on plaintiff's claim against defendant Corporal Estudillo. Because 42 U.S.C. § 1983 has no independent statute of limitations, Johnson v. State of California, 207 F.3d 650, 653 (9th Cir. 2000), courts must instead apply the limitations period governing personal injury actions in the state where the cause of action arose. Wallace v. Kato, 549 U.S. 384, 387 (2007) (citing Owens v. Okure, 488 U.S. 235, 238 (1989)); see also Wilson v. Garcia, 471 U.S. 261, 271-72, 276 (1985). Under California law, as of January 1, 2003, the generally-applicable statute of limitations in personal injury actions is two years. See Cal. Code Civ. Proc. § 335.1.2

As plaintiff alleges that Corporal Estudillo subjected him to excessive force on November 10, 2012, the statute of limitations on any Section 1983 claim against Estudillo would have run on November 10, 2014.3 In order to state a claim solely against Estudillo, then, plaintiff's proposed amended complaint would have to relate back to March 8, 2013, the date on which plaintiff filed his initial complaint against defendant Bautista.

Under the applicable provision of Federal Rule of Civil Procedure 15:

Fed. R. Civ. P. 15(c) (emphasis added).

Federal Rule of Civil Procedure 4(m) provides 90 days after filing for service of the summons and complaint,4 and in a non-prisoner case, would ordinarily have established a deadline of June 6, 2013. However, given the requirement set forth in 28 U.S.C. § 1915A that the court review "a complaint in a civil action in which a prisoner seeks redress from a[n] . . . officer or employee of a governmental entity" prior to ordering service, the court finds that the applicable deadline was October 31, 2013, i.e., 90 days after August 2, 2013, the date on which the court ordered service of the summons and complaint on defendant Baustista. (See ECF No. 20.)

Accompanying defendant's opposition is the declaration of defendant's counsel, Kelly J. Trujillo, which sets forth facts establishing that Corporal Estudillo retired from the City of Vallejo Police Department on February 24, 2013, before the filing of this action. (ECF No. 72-1 ¶ 2.) The declaration further provides that "when a new lawsuit is served on the City of Vallejo, the City Attorney's office provides email notification of the new lawsuit to the named Defendant(s), the department head of the named employee(s)[,] and City administration. [. . .] [S]uch notice was provided via email on September 10, 2013, to the Chief of Police and City administration. On October 11, 2013, an email regarding the lawsuit was sent to Officer Bautista. Corporal Estudillo was not sent this notice during the Rule 4(m) period or at any other time regarding this matter because he was not a named Defendant." (Id. ¶¶ 3-4.)

In the court's view, under these facts, plaintiff cannot show that Corporal Estudillo "should have known" of the instant lawsuit within the applicable period. Fed. R. Civ. P. 15(c)(1)(C)(ii).

Defendant's briefing nevertheless left open the question of whether Corporal Estudillo "knew," i.e., had actual knowledge of, the instant lawsuit within the applicable period. Therefore, by order filed November 3, 2015, the court directed defendant to "file and serve a declaration, signed by Corporal Estudillo under penalty of perjury, that states the date on, and the circumstances under, which Corporal Estudillo learned of the instant lawsuit." (ECF No. 74 at 4.) On November 16, 2015, defendant filed a responsive declaration made under penalty of perjury by Corporal Estudillo. Estudillo therein avers that "[p]rior to Sepmber 2015, [he] had not knowledge about the instant lawsuit from any source." (ECF No. 75 at 2.)

In light of Corporal Estudillo's declaration, plaintiff has failed to show that Corporal Estudillo "knew" of the instant lawsuit within the applicable period. Fed. R. Civ. P. 15(c)(1)(C)(ii). Consequently, plaintiff cannot demonstrate that his proposed amended complaint "relates back" to the date on which he filed his original complaint. Plaintiff's motion for leave to file an amended complaint naming Corporal Estudillo as the sole defendant must therefore be denied.

Moreover, through the filing of a proposed amended complaint omitting Officer Bautista as a named defendant, plaintiff has implicitly conceded that Bautista was not the individual who committed the alleged civil rights violations. See Fed. R. Civ. P. 11(b) ("By presenting to the court a pleading . . . an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . . the factual contentions have evidentiary support . . . .").5 It therefore appears that Officer Bautista is entitled to entry of summary judgment in his favor, on the grounds that there is no genuine dispute that he was not the individual who allegedly kicked plaintiff in the face on November 10, 2012. (See ECF No. 60.)

Dismissal of this action therefore appears warranted.

In light of the foregoing, IT IS HEREBY RECOMMENDED that:

1. Plaintiff's motion for leave to file a third amended complaint (ECF No. 70) be denied, based on plaintiff's failure to file a complaint against Corporal Brian Estudillo within the applicable statute of limitations;

2. Defendant's motion for summary judgment (ECF No. 60) be granted; and

3. This action be dismissed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).