The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action. Pending before the court are: (1) Plaintiff's "Ex Parte Motion Plaintiff for Order Directing Officials to Return Confiscated Religious Materials" (Doc. 12); (2) defendants' motion to dismiss (Doc. 18); and (3) defendants' request for judicial notice (Doc. 21).
Plaintiff brings this civil rights action pursuant to the Religious Land Use and Institutionalized Persons Act ("RLUIPA") alleging that defendants have instituted a policy which imposes a substantial burden on the practice of his religion. Plaintiff, who is Muslim, is serving a sentence of life without the possibility of parole. According to plaintiff, central tenets of his faith require that he marry, that he consummate the marriage, and thereafter maintain a sexual relationship with his wife. Plaintiff states that defendants have implemented a regulation which prohibits "intimate time (family visiting) for Muslim inmates serving a life without parole term. . . ." He states that this makes it impossible for him to consummate his marriage and maintain a sexual relationship with his wife. Plaintiff seeks an injunction prohibiting enforcement of the regulation.
Defendants argue, among other things, that plaintiff's complaint is time-barred. For claims brought under 42 U.S.C. § 1983, the applicable statute of limitations is California's statute of limitations for personal injury actions. See Wallace v. Kato, 549 U.S. 384, 387-88 (2007); Wilson v. Garcia, 471 U.S. 261, 280 (1985); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988). State tolling statutes also apply to § 1983 actions. See Elliott v. City of Union City, 25 F.3d 800, 802 (citing Hardin v. Straub, 490 U.S. 536, 543-44 (1998)). Before January 1, 2003, the statute of limitations for personal injury actions was one year. See Cal. Code Civ. Proc. § 340(3); see also Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999) (citing Elliott, 25 F.3d at 802, and applying the one-year limitation period specified in § 340(3)). The personal injury statute of limitation was extended by passage of California Code of Civil Procedure § 335.1 to two years, effective January 1, 2003. See Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007) (citing Cal. Code Civ. Proc. § 335.1). The extension of this statute of limitations does not apply retroactively to claims which were already barred under the one-year limitation period specified in § 340(3), plus any statutory tolling, as of the effective date of January 1, 2003. See Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004) (citing Douglas Aircraft v. Cranston, 58 Cal.2d 462 (1962)). However, the extended statute of limitations period provided for in § 335.1 is applicable to claims which are not yet barred. See Lamke v. Sunstate Equip. Co., LLC, 387 F. Supp. 2d 1044, 1051-52 (N.D. Cal. 2004) (citing Douglas, 58 Cal.2d at 465).
At the time Elliott was decided -- 1994 -- California Code of Civil Procedure § 352(a)(3) provided tolling of the statute of limitations when the plaintiff is "[i]mprisoned on a criminal charge, or in execution under sentence of a criminal court for a term of less than for life."*fn1 That tolling, however, only applies if the disability of incarceration existed at the time the claim accrued. See Elliott, 25 F.3d at 802 (citing Cal. Code Civ. Proc. § 357). Pre-conviction incarceration qualifies. See id. By the time Fink was decided -- 1999 -- the California tolling provision for the disability of incarceration had been amended. Specifically, California Code of Civil Procedure § 352.1, which became effective January 1, 1995, provides prisoners with only two years of tolling. See Fink, 192 F.3d at 914. Prior to the effective date of § 352.1, prisoners enjoyed tolling for the entire time of sentences less than life. See id. The Ninth Circuit in Fink concluded that § 352.1 applies retroactively. See id. at 915. Thus, for § 1983 claims which accrued before January 1, 1995, the running of the statute of limitations is tolled for two years, or until January 1, 1997, whichever is later. See Fink, 192 F.3d at 916.
The applicable statute of limitations is further tolled while a prisoner completes the exhaustion process mandated by the Prison Litigation Reform Act ("PLRA"). See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005). In Brown, the Ninth Circuit observed that "a prisoner may not proceed to federal court while exhausting administrative remedies," and that "awaiting the completion of a staff misconduct investigation could, absent some adjustment, endanger the prisoner's ability to file his court complaint within the limitations period." Id. at 942. The court added:
We also note that, again like all the other circuits that have considered the question, "we refuse to interpret the PLRA so narrowly as to . . . permit [prison officials] to exploit the exhaustion requirement through indefinite delay in responding to grievances."
Id. at 943 n.18 (quoting Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002), Jernigan v. Stuchell, 304 F.3d 1030 (10th Cir. 2002), Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001), and Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (per curiam)).
In cases where the plaintiff alleges ongoing violations, claims outside the limitations period which relate to claims within the limitations period may nonetheless be actionable under the continuing violation doctrine. In an employment discrimination case, the Supreme Court stated that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). However, where the plaintiff asserts claims resulting from an alleged ongoing policy of discrimination, the continuing violation doctrine applies. See Gutowsky v. County of Placer, 108 F.3d 256, 259-60 (9th Cir. 1997). In Gutowsky, the plaintiff had alleged "that the widespread policy and practices of discrimination of which she complains continued every day of her employment, including days that fall within the limitation period." Id. at 260. Thus, there needs to be an allegation that the specific acts alleged are instances of some broader policy. See id.; see also Cholla Ready Mix Co. v. Civish, 382 F.3d 969, 974-5 (9th Cir. 2004) (citing Morgan, 536 U.S. at 113-14).
Defendants are correct that a claim accrues for statute of limitations purposes either when the injury occurs or when the plaintiff has reason to know of the injury forming the basis of the claim. See Elliot, 25 F.3d at 805. According to defendants, plaintiff's claim accrued in this case in 2002 which is when plaintiff first filed an inmate grievance concerning conjugal family visitation. Defendants have presented the court with copies of documents relating to plaintiff's 2002 grievance. Specifically, defendants' evidence indicates that plaintiff filed a grievance on March 26, 2002, complaining that he was being improperly denied conjugal family visitation. Defendants conclude that, because this action was not commenced until 2009, it is time-barred under any applicable statute of limitations.
Plaintiff argues that any claim accrued only after he re-married in 2007.*fn2
According to plaintiff, this action relates to matters addressed in a 2008 inmate grievance, which challenged amended regulations relating ...