The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are motions to dismiss filed August 7, 2009, and September 28, 2009, by defendants Sacramento County and Sacramento County Sheriff. Both motions argue that this action is barred by the statute of limitations. For the following reasons, defendants' motions are denied.
On September 29, 2009, plaintiff filed an opposition to "defendants [sic] motion to dismiss." Although plaintiff does not identify which motion to dismiss his opposition addresses, the opposition is signed August 30, 2009. Accordingly, the undersigned finds that the opposition addresses the August 7, 2009, motion to dismiss. The proof of service attached to the opposition states that it was mailed on August 30, 2009. Pursuant to the mailbox rule, the opposition is timely.
On December 7, 2009, plaintiff filed an opposition to the September 28, 2009, motion to dismiss, which this court deems timely in light of the difficulties plaintiff had in obtaining legal materials. (See November 18, 2009 Motion filed by plaintiff for access to legal materials and the law library.)
On October 1, 2009, defendants filed a reply to plaintiff's opposition. Defendants argue that plaintiff's opposition fails to address the argument that his claims are barred by the statute of limitations. Plaintiff apparently mistakenly believed that the motion argued that his complaint should be dismissed on grounds that his claims were not colorable, as his opposition addresses the merits of his claims. However, in his second opposition, plaintiff argues that he is entitled to tolling, and that his action is not barred by the statute of limitations.
On December 16, 2008, plaintiff filed the original complaint naming Sacramento County as defendant. Plaintiff alleged that on or about May 16, 2005, four Sacramento County Deputy Sheriffs entered his cell and beat him unconscious. Plaintiff alleged that his nose was broken, his cheek bone was shattered, his eye socket was fractured, both eyes were blackened and he receive four to six stitches to his face. Plaintiff alleged that he was told he would receive reconstructive surgery but never received it.
On January 28, 2009, the court dismissed the original complaint with leave to amend. In this order, the court stated that plaintiff had not alleged sufficient facts supporting a claim for Monell liability against defendant. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 659 (1978)("A municipality may be held liable under § 1983 only where an action pursuant to official municipal policy of some nature causes a constitutional tort.")
On April 20, 2009, plaintiff filed the amended complaint on which this action is proceeding. In the amended complaint, plaintiff alleged that on January 19, 2005, he received a rules violation and had a hearing in Sergeant's Court on that date. Plaintiff alleged in essence the following conduct. As he got up out of his seat at the hearing, a deputy sheriff restrained him for unknown reasons. Plaintiff was then handcuffed and slapped in the face. The deputy then proceeded to search plaintiff. As the search proceeded, the deputy kicked plaintiff's feet out from under him, causing him to fall. The deputy pulled the handcuffs backwards, causing plaintiff extreme pain. Plaintiff heard a snapping. The deputies then found a pill on plaintiff (his sinus medicine). Plaintiff was then dragged to his cell and thrown inside. After thirty minutes, plaintiff heard someone yell "face down." After plaintiff complied, plaintiff heard deputies entering his cell. They then placed a choke hold on him, squeezing plaintiff's throat so hard that he became unconscious. Plaintiff woke up ten minutes later to find himself sprawled across his cell, naked, and in a pool of blood and vomit.
Because the original complaint alleged excessive force occurred on May 16, 2005, and the amended complaint alleged excessive force occurred on January 19, 2005, plaintiff was directed to file a short declaration addressing whether the incidents were the same or different. (November 23, 2009 Order.) After receiving an extension of time, plaintiff filed his declaration on February 4, 2009. In the declaration, plaintiff avers that he suffered excessive force on January 19, 2005, during a cell extraction. (Id. at 3.) He declares it was difficult for him to ascertain the actual date of the excessive force because of the nature of his injuries, his inability to obtain documentary evidence, and the fact that he immediately sought transfer to a different jail based on his fears for his own safety after the alleged beating. (Id. at 3, Original Complt. at 2-3.)
The statute of limitations in § 1983 civil rights cases is governed by state law. Wilson v. Garcia, 471 U.S. 261, 275 (1985). The statute of limitations in California for personal injury actions is two years from the date of accrual. Cal. Code Civ. P. § 335.1.
In addition to applying the forum state's statute of limitations in this context, federal courts also apply the forum state's law regarding tolling when not inconsistent with federal law. Hardin v. Straub, 490 U.S. 536, 537-39 (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]). Pursuant to the California Code of Civil Procedure section 352.1, a two-year limit on tolling is imposed on prisoners. Section 352.1 provides, in pertinent part:
(a) If a person entitled to bring an action, mentioned in Chapter 3 (commencing with Section 335), is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years.
Pursuant to Cal. Code Civ. P. § 335.1 and § 352.1, prisoners have four years from the date of the accrual of a cause of action to file a section 1983 action, ...