The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss, filed on October 7, 2008, to which plaintiff filed an opposition, after which defendants filed a reply. Thereafter, plaintiff filed a further opposition (see footnote 5), and although this is not a filing contemplated within the Federal Rules of Civil Procedure or the Local Rules, the court has reviewed this filing as well. By Order, filed on June 24, 2009, the court gave plaintiff a further opportunity to oppose the motion as it had been converted to one brought pursuant to Rule 56 by plaintiff's reliance on equitable tolling.*fn1 Plaintiff filed a supplement to his opposition on July 22, 2009.
After a careful review of the motion, opposing and reply papers, the undersigned must recommend denial of defendants' motion.
This action, originally filed on October 26, 2007, which the court will construe for purposes of the pending motion, and in accordance with the mailbox rule,*fn2 as having been filed on September 17, 2007, now proceeds on the first amended complaint, filed on May 21, 2008. The gravamen of plaintiff's action is that defendants Correctional Captain T. Kopec and Correctional Sergeant A. Martin used excessive force in violation of the Eighth Amendment in a cell extraction of plaintiff at High Desert State Prison on December 20, 2001, for which plaintiff seeks compensatory and punitive damages. First Amended Complaint, pp. 1-5.
Citing Fed. R. Civ. P. 12(b)(6), defendants move for dismissal with prejudice of this action, contending that the complaint is barred by the applicable statute of limitations. Motion to Dismiss (MTD), pp. 1-6; see also, Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th Cir. 1988) (dismissal motion pursuant to Rule 12 (b)(6) was "based on plaintiff's failure to bring his action within the period allowed by the applicable statute of limitations.").
Dismissal on statute of limitations grounds can be granted pursuant to Fed.R.Civ.P. 12(b)(6) "only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir.1991) (quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980)).
Defendants correctly note that, as actions brought under 42 U.S.C. § 1983 do not contain a statute of limitations, the statute of limitations in § 1983 civil rights cases is governed by state law. MTD, p. 4, citing Wilson v. Garcia, 471 U.S. 261, 275, 105 S.Ct. 1938 (1985);*fn3
McDougal v. County of Imperial, 942 F.2d 668, 672-674 (9th Cir. 1991); see also, Guerrero v. Gates, 442 F.3d 697, 706 n. 32 (9th Cir. 2006); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999); Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). Defendants observe that the statute of limitations in California for personal injury actions is two years from the date of accrual, pursuant to Cal. Code Civ. P. § 335.1.*fn4 MTD, p. 4.
Although the state statute of limitations is borrowed for a federal § 1983 action, "federal, not state law, determines when a civil rights claim accrues," and "under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." TwoRivers v. Lewis, 174 F.3d at 991, citing Elliott v. Union City, 25 F.3d at 801-802. In this case, the date of accrual is definitively December 20, 2001, the date plaintiff states that defendants extracted him from his cell with alleged excessive force.
Defendants accurately assert that federal courts, in addition to applying the forum state's statute of limitations in this context, also apply the forum state's law regarding tolling when not inconsistent with federal law. MTD, p. 4, citing Hardin v. Straub, 490 U.S. 536, 537-39, 109 S.Ct. 1998, 2000-2001 (1989) (in § 1983 actions, the limitations periods are determined with reference both to "the appropriate 'state statute of limitations and the coordinate tolling rules'" [internal citation omitted]); Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th Cir. 1988). Defendants concede that, pursuant to Martinez v. Gomez, 137 F.3d 1124, 1126 (9th Cir. 1998) (per curiam), plaintiff is entitled to tolling under California law which gives prisoners "for a term less than for life," two years of tolling for claims for damages in an action "relating to conditions of confinement, including an action brought ... pursuant to Section 1983 Title 42 of the United States Code." Cal. Code Civ. P. § 352.1(a), (c). MTD, p. 4. ...