Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This matter is now before the court on defendants' August 18, 2008, motion to dismiss. The motion argues that most of plaintiff's claims are untimely, and with respect to those that are timely, plaintiff failed to exhaust the available administrative remedies. For the reasons explained below, the court finds that the motion must be granted in part and denied in part.
Plaintiff filed his initial complaint on June 6, 2003. The action proceeds on his October 9, 2007, amended complaint in which plaintiff alleges that defendants violated his Eighth Amendment rights by housing him with a cellmate who had contagious diseases. In particular, plaintiff alleges that from the time he was incarcerated in 1987 until the time he filed his initial complaint, the California Department of Corrections ("CDCR") had a practice of not screening incoming prisoners for infectious diseases and a practice of housing prisoners carrying infectious diseases with healthy prisoners. Amended Complaint (hereafter "Am. Compl.") at 8, 10, 11. He ascribes this policy to defendant Tilton and several "Doe" defendants who held the position of Director of the CDCR during part of the time plaintiff was in prison.*fn1 Am. Compl., at 7. He asserts that defendant Sergeant Trevino of California State Prison at Solano was deliberately indifferent to a serious risk of harm, i.e., contracting an infectious disease, by refusing to move plaintiff from a cell he shared with prisoners known to have "contagious diseases which could injure the plaintiff." Id. He alleges that Santos Cervantes was deliberately indifferent to the same risk of harm by refusing to permit plaintiff to be single-celled. Id. at 8, 17. Furthermore, he asserts, defendants knew plaintiff was housed with prisoners who either had, or would themselves contract, contagious diseases. Id. at 8.
Plaintiff alleges that the prisoners engaged in various unsanitary practices, such as bathing, washing their clothes and cooling drinks with toilet water. Id. at 16. He asserts that the failure to test prisoners for infectious diseases together with housing decisions resulted in his being placed with cellmates having contagious diseases. He alleges that from this exposure he contracted "two or more of those [infectious] diseases." Am. Compl., at 11. In particular, he contracted tuberculosis in 1987 while he was confined in a prison*fn2 that "previously [had] been placed on complete quarantine by officials on several occasions" because of tuberculosis outbreaks. Am. Compl., at 12, 13. Plaintiff further alleges that in 1990, he was exposed to an unidentified infectious disease and that at "some point between 1999 and 2002" he became infected with Hepatitis.*fn3 Am. Compl., at 14. He claims to have been exposed to HIV, Hepatitis D, tuberculosis, Hepatitis C, and Helio Bacter Pylori. Id. at 18. At the time he filed his complaint he suffered from "some unidentified disease that has not been diagnosed," characterized by "strange lumps on the plaintiff's legs presently and there is some type of skin disease where there is welting and itching constantly with redness." Id.
In support of their contention that plaintiff failed to exhaust the available administrative remedies, defendants have submitted evidence that between February 24, 1998, and March 21, 2003, plaintiff submitted 40 grievances for consideration on the Director's Level of Review. Defs.' Mot. to Dism., Grannis Decl., Attach. 1. The categories into which prison officials placed the substance of plaintiff's grievances included staff, work incentive,*fn4 legal, medical, property, mail, living conditions, funds and disciplinary. Id. Defendants have submitted copies of some of the decision plaintiff obtained on the Director's Level of review. Most of these records are illegible. Based on the legible documents, the court finds that the grievances involved alleged misconduct on the part of a law librarian, conditions in his job assignment in silk screening, the provision of dental care, the adequacy of the law library, the availability of newspapers in the library, and a finding that he was guilty of battery on a peace officer and subjected to disciplinary action. Defs.' Mot. to Dism., Edwards Decl., Attach. A at unnumbered page 1, 4, 22, 26, 29, 44.
The parties agree that on April 9, 2003, plaintiff submitted a grievance complaining that he should not be housed with other prisoners because there was a high probability that he might be exposed to contagious diseases.*fn5 On May 15, 2003, Santos Cervantes returned the appeal to plaintiff on the ground that plaintiff "appeal[ed] something that has not affected him." Pl.'s Mot. for Jud. Ntc. in Supp. of Opp'n to Mot. to Dism., filed Sept. 2, 2008 (hereafter "Pl.'s Exhs."), Exh. C. Without submitting a copy of the response,*fn6 plaintiff states that he responded to Cervantes with the following:
Let me see if I can do this without calling you a moron. The fact of housing persons who do not have disease with person who can catch diseases is immediately adverse to the inmate who does not have the disease. My health has been affected by being housed with so many inmates who are infected with contagious diseases.
Pl.'s Exhs. at p. 6. On May 19, 2003, Cervantes told plaintiff that he had to ensure that prisoners complied with all regulations concerning the appeals process, and instructed plaintiff to "[p]lease delete your reference to the Appeals Coord as a 'moron' and simply comply with the written instruction dated 5-15-03." Pl.'s Exhs., Exh. B. On May 20, plaintiff wrote to Cervantes that nowhere had he called Cervantes a "moron," and that in any event if he had the usage would have complied with an ordinary, dictionary use. Id., Exh. E. Cervantes responded that plaintiff should "refrain from unacceptable adjectives altogether," rejected the appeal for using inappropriate language and told plaintiff that he could resubmit the appeal if he would "[d]elete all references to the unacceptable adjective as previously instructed on 5-19-03." Id., Exh. F. Plaintiff insisted that his use of the word "moron" did not violate the prison regulatory scheme and refused to follow Cervantes' instructions. Id., Exh. G. Thus, on April 21, 2003, Cervantes rejected plaintiff's April 19, 2003, appeal on the ground that plaintiff "refused to correct inappropriate statement" in his appeal. Id., Exh. F. Plaintiff concedes that the appeal of this issue ended at this time.
II. Plaintiff's Motion to Strike
In response to the defendants' motion to dismiss for failure to exhaust the available administrative remedies, plaintiff moved to strike their argument on the ground that it is impertinent. See Fed. R. Civ. P. 12(f). Before responding to a pleading, a party may move for an order striking "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The purpose of a motion made under Rule 12(f) is to "avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . ." Sidney-Vinstein v. A. H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). The Federal Rules of Civil Procedure distinguish between pleadings and motions. Pleadings are complaints, answers and replies. Fed. R. Civ. P. 7(a). All other papers are motions and requests, oppositions and, if authorized, replies to oppositions. Fed. R. Civ. P. 7(a); L. R. 78-230. Here, as noted, plaintiff moves to strike matter from defendants' motion to dismiss. Plaintiff cites no authority for striking the exhaustion argument from the motion, and the motion to strike is denied.
III. Motion to Dismiss Claims as Untimely
Defendants move to dismiss all of plaintiff's claims that accrued before June 6, 2000, on the ground that they are barred by the statute of limitations. Defs.' Mot. to Dism., at 4. In particular, they argue that plaintiff's claims that he contracted tuberculosis*fn7 in 1987 and another, unidentified disease in 1990 are untimely. Id. He contends that all his claims are timely. Am. Compl., at 5-7; Pl.'s Mot. to Strike,*fn8 (hereafter "Pl.'s Opp'n") at 7. He contends that the continuing violation doctrine saves this action. Pl.'s Opp'n, at 10.
A. Standards on Motion to Dismiss Under Rule 12(b)(6)
A complaint may be dismissed for failure to state a claim upon which relief may be granted for one of two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). Where the complaint contains facts sufficient to determine whether an action is timely, the court may entertain a motion to dismiss under Rule 12(b)(6) on the ground that an action is barred by the statute of limitations. See Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000) (district court may grant motion to dismiss an action as untimely "only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled."). When considering a motion to dismiss, ...