The opinion of the court was delivered by: Charles R. Breyer, United States District Judge
Paul Arthur Pedersen, a "sexually violent predator" civilly committed to Atascadero State Hospital for renewable periods of two years under California's Sexually Violent Predator Act, Cal. Welf. & Inst. Code § 6600 ("SVPA"), has filed a pro se action for damages under 28 U.S.C. § 1915 and 42 U.S.C. § 1983. In his First Amended Complaint, Pedersen alleges that, while temporarily housed at the Alameda County Jail from January 29, 1997 to March 13, 1997, November 8, 1999 to December 1, 1999, March 16, 2000 to April 20, 2000, and March 21, 2002 to April 2, 2002, while attending court proceedings at Alameda County Superior Court, defendants violated his due process and equal protection rights by housing him at the Alameda County Jail, Santa Rita Facility, rather than at the Alameda County Jail, North Facility's "acute psychiatric unit."
Federal courts must dismiss a case filed in forma pauperis under § 1915 at any time if the court determines that the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Most of Pedersen's claims are time-barred. The appropriate limitation period for a § 1983 action is that of the forum state's statute of limitation for personal injury torts. See Wilson v. Garcia, 471 U.S. 261, 276 (1985); Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). Because California has multiple statutes of limitation for different torts, the court borrows the general or residual statute for personal injury actions to use for a § 1983 action, which at the time of the filing of the complaint was a one-year limitation period. See Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999). The court also must give effect to a state's tolling provisions. See Hardin v. Straub, 490 U.S. 536, 543-44 (1989); Marks v. Parra, 785 F.2d 1419, 1419-20 (9th Cir. 1986). California Civil Procedure Code section 352.1 tolls the statute of limitation when a person is "imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term of less than for life." Cal. Civ. Proc. Code § 352.1(a). The tolling is not indefinite, however; the disability of imprisonment delays the accrual of the cause of action for a maximum of two years. See id.
The one-year limitation period applies to Pedersen's case. He is not entitled to any tolling for the disability of imprisonment under California Code of Civil Procedure § 352.1 because, as he correctly asserts, he is not a prisoner and is not imprisoned on a criminal charge, and he has not been a prisoner since he was released on parole in 1997 and was immediately detained by Alameda County as a civil detainee under SVPA. See Johnson v. Mayberg, No. C 02-3535 SI (PR), 2003 WE 926617, at *2 (N.D. Cal. Mar. 6, 2003); see also Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000) (individuals civilly committed under SPVA are not prisoners). Pedersen's claims pertaining to his temporary detention at the Alameda County Jail in 1997, 1999 and 2000, accrued in 1997, 1999 and 2000, respectively, and are time-barred by the applicable one-year limitation period because the instant action was not filed until May 28, 2002. These claims accordingly are dismissed. See Franklin v. Murphy, 745 F.2d 1221, 1228-30 (9th Cir. 1984) (sua sponte dismissing claims as time-barred under 28 U.S.C. § 1915 where, as here, defense is complete and obvious from the face of the complaint and attachments or the court's own records).*fn1
Although Pedersen's claims pertaining to his detention at the Alameda County from March 21, 2002 to April 2, 2002 are not time-barred, they will be dismissed for failure "to state a claim on which relief may be granted." 28 U.S.C. § 1915 (e)(2). Pedersen alleges that he wrote a letter to Alameda County Sheriff Charles C. Plummer on March 15, 2002 informing him that he would be returning to the Alameda County Jail for new SVPA court proceedings and that he "would required appropriate, and available housing that would satisfy Plaintiffs ongoing treatment program." Plummer responded in a letter dated April 30, 2002, in which he assured Pedersen that, in accordance with California Penal Code section 4002(b), he would be housed in "separate and secure housing" and, "to the extent possible," would "continue in his . . ., course of treatment." Pedersen claims that Deputy Sheriff Lieutenant C. Victor Smith violated his constitutional rights to due process and equal protection by nonetheless housing him at the Alameda County Jail, Santa Rita Facility from March 21, 2002 through April 2, 2002 without regard to his treatment, which was available at the Alameda County Jail, North Facility's "acute psychiatric unit."
Under the Due Process Clause of the Fourteenth Amendment, involuntarily committed persons retain substantive liberty interests, which include at least the right to adequate food, shelter, clothing and medical care; safe conditions of confinement; and freedom from unnecessary bodily restraint. Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982). States also must provide civilly-committed persons with access to mental health treatment that gives them a realistic opportunity to be cured and released. Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000). To determine whether the nature and extent of an infringement of one of these liberty interests rises to the level of a due process violation, a court must balance the individual's liberty interest against the relevant state interests. See Youngberg, 457 U.S. at 320-21; see also Seling v. Young, 531 U.S. 250, 265 (2001) ("[D]ue process requires that the conditions and duration of confinement under [a state civil commitment statute] bear some reasonable relation to the purpose for which persons are committed.").
Understanding that civil detainees/committees under SVPA retain certain substantive liberty interests, California Law provides that "[i]nmates who are held pending civil process under the sexually predator laws shall be held in . . . separate and secure housing that does not involve any deprivation of privileges other than what is necessary to protect the inmates and staff." Cal. Penal Code § 4002(b). And, "to the extent possible, the person shall continue in his or her course of treatment." Id.
Pedersen's allegation that he was housed at the Alameda County Jail, Santa Rita Facility from March 21, 2002 through April 2, 2002, rather than at the Alameda County Jail, North Facility's "acute psychiatric unit," does not state a claim for violation of his due process rights. This is so even if the alleged "improper" housing resulted in his not being able to continue with his "course of treatment." California affords Pedersen mental health treatment that gives him an opportunity to be cured and released from his commitment under SVPA at Atascadero State Hospital. That no such treatment was had during the 10 days he was temporarily held at the Alameda County Jail, Santa Rita Facility does not sufficiently infringe on his right to continued treatment to state a due process violation. Cf. Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (finding no merit in due process claims stemming from alleged minor delays in providing medical care to pretrial detainees). Nor does Pedersen allege any other infringement of his protected liberty interests sufficient to rise to the level of a due process violation under Youngberg and its progeny.
Pedersen's claim that his temporary housing at the Alameda County Jail, Santa Rita Facility, rather than at the Alameda County Jail, North Facility's "acute psychiatric unit," where persons under other "civil commitment processes" were housed, violated his right to equal protection is also without merit. "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Sexually violent predators are not similarly situated with those committed under other civil commitment ...