FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on September 29, 2003. It is proceeding on claims raised against five defendants named in plaintiff's sixth amended complaint, filed March 5, 2008.*fn1 This matter is before the court on defendant Grannis' August 28, 2008 motion for dismissal from this action on the grounds that the claims against her are time-barred.*fn2,*fn3 California law determines the applicable statute of limitations in this § 1983 action. See Wilson v. Garcia, 471 U.S. 261 (1985). Until December 31, 2002, the applicable state limitations period was one year. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (citing Cal.Civ.Proc.Code § 340(3) (West Supp. 2002); see also Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004).*fn4 Effective January 1, 2003, the applicable California statute of limitations was extended to two years. See Jones, 393 F.3d at 927 (citing Cal.Civ.Proc.Code § 335.1). California law also tolls for two years the limitations period for inmates "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.*fn5
By this action, plaintiff claims that his rights under the Eighth Amendment were violated by defendants' deliberate indifference to his serious medical needs, specifically, timely provision of medically necessary shoes and therapy for neck and back pain. Plaintiff alleges that on November 12, 2002, defendant Grannis denied at the final level of administrative review an inmate appeal plaintiff filed seeking an appointment with a doctor, special shoes, medication, and physical therapy. Plaintiff's claim against defendant Grannis therefore accrued on or about November 12, 2002. At the time plaintiff's claim accrued, in accordance with the provisions of Cal.Civ.Proc.Code §§340(3) and 352.1, he had until November 12, 2005 to file a civil rights action arising from those events. On January 1, 2003, the statute of limitations was extended to two years. Federal law governs whether a new statute of limitations applies retroactively. See Jones v. Blanas, 393 F.3d 918, 927 n.4 (9th Cir. 2004). Under federal law, "'a newly enacted statute that lengthens the applicable statute of limitations may not be applied retroactively to revive a plaintiff's claim that was otherwise barred under the old statutory scheme'. . . ." Jones, id. (quoting Chenault v. United States Postal Service, 37 F.3d 535, 539 (9th Cir. 1994)). "A claim is barred, or 'stale,' if the applicable statute of limitations period expires prior to the enactment of the statutory enlargement." Jordan v. Herrera, 2003 WL 22668840, slip op. at 4 (C.D. Cal. 2003). Where, as here, the limitations period on plaintiff's cause of action had not expired at the time the statute of limitations was enlarged, the new limitation period applies. See id.*fn6 Plaintiff therefore had until November 12, 2006 to file his claim against defendant Grannis. Plaintiff's sixth amended complaint was not filed until March 5, 2008, and plaintiff did not name defendant Grannis as a defendant in any previous complaint filed in this action.
Rule 15(c) of the Federal Rules of Civil Procedure provides in relevant part that
[a]n amendment to a pleading relates back to the date of the original pleading when: . . . .
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out -- or attempted to be set out -- in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
Fed. R. Civ. P. 15(c)(1)(B), (C). Plaintiff's claim against defendant Grannis satisfies the requirement of Fed. R. Civ. P. 15(c)(1)(B) in that the claim against defendant Grannis arose out of the same transaction or occurrence that gave rise to the claims raised in the original complaint.*fn7 The record does not, however, show that the requirements of Fed. R. Civ. P. 15(c)(1)(C) have been met.
The original complaint was filed in this action on September 29, 2003. Despite the fact that plaintiff appended to that complaint a copy of the Director's Level decision that forms the basis of his claim against defendant Grannis, he did not name defendant Grannis as a defendant in that or any of the succeeding amended complaints filed in this action until he filed the sixth amended complaint in March 2008. This court therefore finds that, prior to July 2008 when she received a copy of the complaint and waived service of process*fn8 , defendant Grannis had no notice that she might be a defendant in this action. For that reason, the claim raised against defendant Grannis in the sixth amended complaint does not relate back to the filing of the original action, and that claim is time-barred. Defendant Grannis' motion to dismiss should therefore be granted.
In accordance with the above, IT IS HEREBY RECOMMENDED that:
1. Defendant Grannis' August 28, 2008 motion to dismiss be granted;
2. Plaintiff's claim against defendant Grannis be dismissed as barred by the ...