FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KENLY KIYA KATO, Magistrate Judge.

This Final Report and Recommendation is submitted to the Honorable Consuelo B. Marshall, Senior United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.

SUMMARY OF RECOMMENDATION

Plaintiff Gregory Franklin ("Franklin"), proceeding pro se and in forma pauperis, filed a Third Amended Complaint ("TAC") pursuant to 42 U.S.C. § 1983 ("Section 1983"). In the sole remaining claim in the TAC, Franklin alleges defendant B. Bojoroquez violated the First Amendment by retaliating against Franklin for filing lawsuits against prison officials. Defendant Bojoroquez has now filed a Motion for Judgment on the Pleadings ("Motion") arguing the claim against him is untimely. For the reasons below, the Court recommends GRANTING defendant Bojoroquez's Motion, and DISMISSING the TAC with prejudice.

II.

PROCEDURAL HISTORY

On October 11, 2015, Franklin, who is currently serving a sentence of life without the possibility of parole1 at California State Prison in Los Angeles County, initiated this action by constructively filing2 a Complaint suing various defendants, including defendant Bojoroquez, in their individual and official capacities. ECF Docket No. ("Dkt.") 1.

On March 8, 2017, Franklin constructively filed the operative TAC against B. Harris, B. Bojoroquez, L. Rowe, A. H. Martinez, and C. Wofford ("Defendants") in their individual capacity. Dkt. 51.

On November 2, 2018, the Court granted in part Defendants' Motion for Summary Judgment and dismissed the claims against every defendant except defendant Bojoroquez. Dkt. 94. Thus, the sole remaining claim in the TAC is against defendant Bojoroquez and concerns alleged incidents that occurred in October 2011 and January 2012. Dkt. 51 at 12. Franklin contends defendant Bojoroquez fabricated rule violations against Franklin in retaliation against him for filing lawsuits against prison officials. Id.

On December 6, 2018, defendant Bojoroquez filed the instant Motion arguing (1) the claim against defendant Bojoroquez is facially untimely, and (2) tolling does not render the claim timely. Dkt. 96 at 7-9. On January 29, 2019, Franklin constructively filed an Opposition. Dkt. 100. On February 25, 2019, defendant Bojoroquez filed a Reply. Dkt. 101.

On March 1, 2019, the Court issued a Report and Recommendation granting the Motion and dismissing the TAC with prejudice. Dkt. 102.

On April 11, 2019, Franklin constructively filed Objections. Dkt. 108. On May 7, 2019, defendant Bojoroquez filed a Response. Dkt. 109. The Court issues the instant Final Report and Recommendation addressing Franklin's Objections in Section IV.B. below.

The matter thus stands submitted and ready for decision.

III.

LEGAL STANDARD

Under Rule 12(c) of the Federal Rules of Civil Procedure, a party may move for judgment on the pleadings. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L. Ed. 2d 59 (1984); Dworkin v. Hustler Magazine, 867 F.2d 1188, 1192 (9th Cir 1989). A motion for judgment on the pleadings is "functionally identical" to a motion to dismiss for failure to state a claim; the only significant difference is that a Rule 12(c) motion is properly brought "after the pleadings are closed—but early enough not to delay trial." Fed. R. Civ. P. 12(c); Dworkin, 867 F.2d at 1192.

A court may grant judgment on the pleadings "when, taking all allegations in the pleading as true, the moving party is entitled to judgment as a matter of law." McGann v. Ernst & Young, 102 F.3d 390, 392 (9th Cir. 1996). A court must assume the truthfulness of all material facts alleged and construe all inferences reasonably to be drawn from the facts in favor of the responding party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989). In deciding a motion for judgment on the pleadings, a court has discretion to grant the dismissal of the action instead of entering judgment. Hanline v. Cty. of Ventura, CV 15-8808-VAP (AJWx), 2016 WL 6915304, at *1 (C.D. Cal. July 19, 2016). "It is well-settled that materials properly attached as exhibits to the complaint and matters that are subject to judicial notice may . . . be considered in evaluating a motion for judgment on the pleadings." Shame On You Prod., Inc. v. Elizabeth Banks, 120 F.Supp.3d 1123, 1144 (C.D. Cal. 2015) (citations omitted).

IV.

DISCUSSION

A. THE CLAIM AGAINST DEFENDANT BOJOROQUEZ IS FACIALLY UNTIMELY

1. Applicable Law

When a complaint is filed pursuant to Section 1983, the applicable statute of limitations is the applicable state statute of limitations for personal injury actions. Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009). California's statute of limitations for personal injury actions is set forth in California Code of Civil Procedure section 335.1 ("Section 335.1"), which states a personal injury action must be filed within two years after the action accrued. Cal. Civ. Proc. Code § 335.1.

2. Analysis

Here, Franklin alleges defendant Bojoroquez violated his First Amendment right in October 2011 and January 2012. Dkt. 51 at 12. Thus, Franklin's action accrued in January 2012 and Section 335.1's statute of limitations expired two years later in January 2014. Cal. Civ. Proc. Code § 335.1. Franklin did not, however, constructively file the Complaint until October 11, 2015. Dkt. 1. Therefore, in the absence of any applicable tolling, the claim against defendant Bojoroquez is facially untimely by over one year.

B. TOLLING FAILS TO RENDER THE CLAIM AGAINST DEFENDANT BOJOROQUEZ TIMELY

1. Applicable Law

To determine whether circumstances toll Section 335.1, the Court must apply California's law regarding tolling. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). California law tolls Section 335.1 under three circumstances. First, Section 335.1 is tolled "while a prisoner completes the mandatory exhaustion process." Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005). Second, California Code of Civil Procedure section 352.1 ("Section 352.1") tolls Section 335.1 for up to two years if a plaintiff "is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life." Cal. Civ. Proc. Code § 352.1. Third, "[e]quitable tolling under California law operates independently of the literal wording of the Code of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness." Jones, 393 F.3d at 928-29 (granting equitable tolling to a civil detainee who alleged "conditions of confinement that would make the filing of a lawsuit practically impossible even for a trained attorney").

2. Analysis

Here, Franklin is entitled to tolling during the period he pursued exhaustion of his administrative remedies from January 29, 2012 to February 14, 2012. See dkts. 77-2 at 22-23 (February 7 and 14, 2012 screening of the grievance), 77-3 at 2 (Franklin's January 29, 2012 inmate grievance).

Franklin is not, however, entitled to an additional two years of tolling under Section 352.1 because he is incarcerated for a term of life without the possibility of parole. See Cal. Civ. Proc. Code § 352.1; Dkt. 96-1 at ¶ 1, Ex. A. Section 352.1's plain language only provides two years of tolling to incarcerated plaintiffs serving sentences "for a term less than for life," and thus excludes plaintiffs serving life terms. Cal. Civ. Proc. Code § 352.1. Indeed, the Ninth Circuit and district courts in the Central District of California have declined to apply Section 352.1's tolling provision to plaintiffs serving sentences of life without the possibility of parole. See Gonzalez v. Gardemal, 599 F. App'x 292, 292 (9th Cir. 2015)3 (affirming dismissal of plaintiff's claim as untimely since he "[was] not entitled to statutory tolling because he [was] incarcerated for a life term without the possibility of parole"); Gomes v. Mathis, No. CV 17-7022 SVW (SS), 2018 WL 2085237, at *7 (C.D. Cal. May 3, 2018) (analyzing Section 352.1's tolling provision does not extend to Section 1983 complaints filed by prisoners sentenced to life without the possibility of parole); Melgar v. Lopez, No. CV 14-8316 DOC (AJW), 2015 WL 5768368, at *4 (C.D. Cal. Sept. 30, 2015); Rideau v. Greenberg, No. EDCV 11-1698-GW (DTB), 2013 WL 3669555, at *6 (C.D. Cal. July 12, 2013); Childs v. Marshall, No. CV 09-00715-GAF (VBK), 2010 WL 342602, at *4 n.4 (C.D. Cal. Jan. 27, 2010); Beard v. Lucio, No. CV 08-00570 GW (RZ), 2009 WL 393016, at *2 (C.D. Cal. Feb. 13, 2009). The Court, thus, finds Franklin is not entitled to tolling under Section 352.1.

Finally, in his Objections, Franklin has alleged "conditions of confinement that would make the filing of a lawsuit practically impossible even for a trained attorney," see Jones, 393 F.3d at 929, that would entitle him to equitable tolling for an additional period through March 2013. Franklin contends the "law library was not open or was closed February and March 2012" and that "he was denied adequate access to the law library at least until March 2013". Dkt. 108 at 4-5. Hence, for purposes of this Final Report, the Court will assume tolling through March 2013 "as necessary to ensure fundamental practicality and fairness."4 See Jones, 393 F.3d at 929.

Thus, Section 335.1's statute of limitations: (1) commenced in January 2012; (2) tolled from January 29, 2012 through March 2013 during the time Franklin pursued his administrative remedies and had inadequate or no access to the law library; (3) recommenced April 2013; and (4) expired in April 2015. Franklin did not file the initial Complaint until October 11, 2015. Dkt. 1. Therefore, Franklin's claim against defendant Bojoroquez remains untimely by close to six months.5 See Cal. Civ. Proc. Code § 335.1.

V.

RECOMMENDATION

IT IS THEREFORE RECOMMENDED the Court issue an Order: (1) accepting this Final Report and Recommendation; (2) GRANTING defendant Bojoroquez's Motion for Judgment on the Pleadings; and (3) DISMISSING the TAC with prejudice.