United States District Court, D. Nevada
J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Kareen Anderson's Petition for
Equitable Tolling (ECF No. 44) and Defendants CoreCivic, Dr.
Saavedra, and Nurse Ubina's Response thereto (ECF No.
45). No. timely reply was filed by Plaintiff.
Petition, Plaintiff asserts that his time to file an
objection to the Court's November 8, 2019 Report and
Recommendation (ECF No. 35) should be tolled because he
diligently pursued his rights and extraordinary circumstances
prevented him from complying with the filing requirements.
Defendants claim that Plaintiff has not demonstrated the
necessary extraordinary circumstances required to trigger
equitable tolling. The Report and Recommendation was accepted
in full by the Court on November 27, 2019 (ECF No. 37) noting
that no objection was filed.
with Plaintiff's argument, Plaintiff may be entitled to
equitable tolling upon a showing that (1) he has been
pursuing his rights diligently, and (2) some extraordinary
circumstance stood in his way and prevented timely filing.
Holland v. Florida, 560 U.S. 631, 649 (2010)
(citation omitted). As explained by the U.S. Supreme Court in
[W]e have also made clear that . . . the exercise of a
court's equity powers ... must be made on a case-by-case
basis. . . . In emphasizing the need for flexibility, for
avoiding mechanical rules, . . . we have followed a tradition
in which courts of equity have sought to relieve hardships
which, from time to time, arise from a hard and fast
adherence to more absolute legal rules, which, if strictly
applied, threaten the evils of archaic rigidity. . .. The
flexibility inherent in equitable procedure enables courts to
meet new situations [that] demand equitable intervention, and
to accord all the relief necessary to correct ... particular
injustices. . . . Taken together, these cases recognize that
courts of equity can and do draw upon decisions made in other
similar cases for guidance. Such courts exercise judgment in
light of prior precedent, but with awareness of the fact that
specific circumstances, often hard to predict in advance,
could warrant special treatment in an appropriate case.
Id. at 649-50 (citations and internal quote marks
Plaintiff specifically explains that the Nevada Southern
Detention Center (“NSDC”) conducted a
“major dorm search” on November 12, 2019,
resulting in the scattering and loss of legal materials
Plaintiff kept in his cell. This dorm search was followed by
a “bunk search” a couple of days later resulting
in, inter alia, the misplacement of the Report and
Recommendation to which Plaintiff sought to object. Plaintiff
supports his claim with two emails he sent on November 12,
2019, regarding his lost materials and damaged USB drive on
which Plaintiff had scanned a great number of documents. No.
response was received to these emails. On November 20, 2019,
Plaintiff again sent an email seeking to make a legal call to
the Clerk of Court in an attempt to gain information needed
for his desired objection. Once again, no response was
received. Plaintiff avers that the searches conducted and the
loss/damage to his legal documents, including the Court's
November 8, 2019 Report and Recommendation, were clearly
beyond Plaintiff's control and left Plaintiff without
access to the materials he needed to timely file his
above facts demonstrate that Plaintiff diligently attempted
to pursue his rights to timely file an objection within 14
days of the Court issuing its November 8, 2019 Order, and
that Plaintiff meets the first element of the test necessary
to establish equitable tolling. That is, on November 12,
2019, the same day as the dorm search, Plaintiff twice sought
assistance from NSDC to retrieve legal materials he needed to
file his objection to the November 8, 2019 Order. When
Plaintiff's copy of the Report and Recommendation went
missing following a bunk search that occurred a few days
later, Plaintiff sought to call the Clerk of Court to obtain
information needed to file his objection. Given the short
amount of time Plaintiff had between receiving the Report and
Recommendation, the searches that resulted in the loss or
destruction of materials, and the due date for the objection,
Plaintiff's efforts demonstrate the diligence
contemplated by the law. Nonetheless, Plaintiff must also
establish that the events he describes were
“extraordinary circumstances” preventing him from
acting within the 14 days allotted for an objection to a
magistrate judge's order.
argue that Plaintiff's segregation and the resulting
limited access to the law library are insufficient bases to
entitle him to equitable tolling. Defendants further aver
that the loss, damage, and disorganization of Plaintiff's
legal materials also do not justify equitable tolling.
Defendants point to numerous cases in the Ninth Circuit
holding that prison lockdowns and lack of access to a law
library are generally insufficient to establish extraordinary
circumstances necessary to warrant equitable tolling.
Blankenship v. Cate, Civil No. 09cv2414 W(PCL), 2010
WL 3733025, at *4 (S.D.Cal. July 2, 2010) (“Petitioner
explains away any delay on his lack of legal knowledge and
his limited but available access to the law library, but,
pursuant to Evans v. Chavis, these are not
sufficient justifications to make statutory interval tolling
available to him[.]”), accepted by 2010 WL
3733583 (S.D.Cal. Sept.17, 2010). Ramirez v. Yates,
571 F.3d 993, 998 (9th Cir.2009) (institutional lockdowns
resulting in restricted but available access to the law
library do not constitute extraordinary circumstances that
warrant equitable tolling). However, the Court notes that
numerous contrary cases also exist. Lott v. Muller,
304 F.3d 918, 922 (9th Cir. 2002) (“[w]hen external
forces, rather than a petitioner's lack of diligence,
account for the failure to file a timely claim, equitable
tolling may be appropriate”) (citation omitted). As
stated in Lott, “[t]he peculiar facts of this
case echo . . . [the] earlier holding in Whalem/Hunt v.
Early, 233 F.3d 1146, 1147 (9th Cir.2000) (en
banc), when we stated that the grounds for granting
equitable or statutory tolling are “highly fact
at the specific facts of this case, to the extent Plaintiff
asserts that he had limited access to the law library because
he was in segregation, this does not constitute extraordinary
circumstances. Perez v. Biter, No. CV-12-9376, 2013
WL 5890633, at *5 (C.D. Cal Oct. 31, 2013) citing
Ramirez, 571 F.3d at 998. However, this is not the
totality of facts upon which Plaintiff relies. Plaintiff also
demonstrates that his legal materials were destroyed or
damaged by searches of his dorm as well as his bunk that were
beyond his control. Plaintiff provides the dates of these
searches and explains that, among other things, one of the
documents lost was the Report and Recommendation to which he
sought to object.
day turnaround to file an objection to a magistrate
judge's Report and Recommendation is a relatively quick
one for an incarcerated individual. In this case, the Report
and Recommendation was issued on November 8, 2019, and four
days later, on November 12, 2019, Plaintiffs materials were
lost or damaged due to a dorm search beyond Plaintiffs
control. A few days later, Plaintiffs bunk was searched and
the Report and Recommendation went missing. Plaintiff
immediately pursued remedies arising from the damage and
destruction of his legal materials to no avail. These facts
distinguishes the present case from Lewis v.
Schroder, CV-13-02339, 2014 WL 6792047 (D. Ariz.
December 2, 2014), upon which Defendants rely. Further, in
Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th
Cir. 2009), also relied on by Defendants, the court
recognized that “[deprivation of legal materials is the
type of external impediment for which we have granted
equitable tolling.” (citing Lott, 304 F.3d at
the Court understands that equitable tolling is used
sparingly, United States v. Midgley, 142 F.3d 174,
179 (3d Cir. 1998), and applied “only in the rare
situation where [it] is demanded by sound legal principles as
well as the interests of justice.” LaCava v.
Kyler, 398 F.3d 271, 275 (3d Cir. 2005). However, for
the reasons set forth above, the Court finds such a rare
circumstance requiring flexibility and equitable intervention
IT IS HEREBY ORDERED that Plaintiffs Petition for Equitable
Tolling (ECF No. 44) is GRANTED.
FURTHER ORDERED that Plaintiff shall be entitled to file his
objection to the Court's Report and Recommendation (ECF
No. 35) within fourteen (14) days of the date ...