The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT FOR PURSUANT TO 28 U.S.C. FAILING TO STATE A CLAIM §§ 1915(e)(2)(B) & 1915A(b)
On August 14, 2009, Plaintiff, a state inmate currently incarcerated at the California State Prison located in Corcoran, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. The Court granted Plaintiff's Motion to Proceed In Forma Pauperis ("IFP") and dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A. See Oct. 5, 2009 Order at 7-8. The Court also noted that Plaintiff's Complaint appeared to be duplicative of an action he had previously filed and the majority of the claims were barred by the applicable statute of limitations. Id. at 3-5. The Court granted Plaintiff leave to file a First Amended Complaint in order to correct the deficiencies of pleading and to plead facts as to why he should be entitled to equitable tolling of his time barred claims. Id. at 8. Plaintiff filed his First Amended Complaint ("FAC") on November 25, 2009.
II. SCREENING PURSUANT TO 28U.S.C.§§1915(e)(2)&1915A(b)
As the Court previously informed Plaintiff, the Prison Litigation Reform Act ("PLRA") amendments to 28 U.S.C. § 1915 obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. Id.
To state a claim under § 1983, Plaintiff must allege that: (1) the conduct he complains of was committed by a person acting under color of state law; and (2) that conduct violated a right secured by the Constitution and laws of the United States. Humphries v. County of Los Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
B. Plaintiff's previous litigation and Statue of Limitations
Plaintiff originally filed this action against the same Defendants involving the same claims in 2006. See Love v. Hensley, S.D. Cal. Civil Case No. 06cv1375 DMS (CAB).*fn1 A review of the Court's docket in the 2006 case shows that the Court initially dismissed Plaintiff's Complaint but provided him leave to file an Amended Complaint. Instead of filing an Amended Complaint, Plaintiff filed an Appeal with the Ninth Circuit Court of Appeals. On August 26, 2008, Plaintiff's Appeal was dismissed by the Ninth Circuit because the Order from which Plaintiff was appealing was not a final Order. See Love v. Hensley, et al., No. 06-56110 (9th Cir. Aug. 26, 2008). Nearly a year later, on June 18, 2009, Plaintiff filed a "Petition for Writ of Mandamus" in the 2006 case. The Ninth Circuit denied this petition on the grounds that Plaintiff had not "demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus." See Love v. United States District Court for the Southern District of California, No. 09-71854 (9th Cir. June 30, 2009). Plaintiff then filed the action that is before this Court on August 14, 2009.
This Court dismissed Plaintiff's Complaint in the October 5, 2009 Order partially on the grounds that he was barred by the applicable statute of limitations and he failed to set forth facts that would entitle him to equitable tolling. Plaintiff's First Amended Complaint fails to cure these deficiencies.
As the Court previously informed Plaintiff, because section 1983 contains no specific statue of limitation, federal courts apply the forum state's statute of limitations for personal injury actions. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). Here, Plaintiff claims constitutional violations alleged to have occurred from 2001 to 2003. Before 2003, California's statute of limitations was just one year. Id. Effective January 1, 2003, the limitations period was extended to two years. Id. (citing CAL. CIV. PRO. CODE § 335.1). Because it is not clear whether some of Plaintiff's claims would be subject to the former one year time frame, the Court will assume that Plaintiff is entitled to the two year statute of limitations for all of his claims.
While prisoners normally receive an additional two years of tolling of their claims due to their incarceration, Plaintiff admits in his First Amended Complaint that he is serving a life sentence. See FAC at 3. In California, this tolling provision applies only to plaintiffs "imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term of less than for life." Jones, 393 F.3d at 927 (citing CAL. CIV. PRO. CODE § 352.1(a)).
Because Plaintiff is serving a life sentence, he is not entitled to the extra two years of statutory tolling. This means that he has two years from the date by which he claims his constitutional rights were violated to file this action. In Plaintiff's First Amended Complaint, those dates range from 2001 to 2003.
Plaintiff would be entitled to tolling as it relates to his attempts to exhaust his administrative remedies as he is required to do pursuant to 42 U.S.C. § 1997e. See Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) ("[T]he applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process.") Here, Plaintiff admits that he completed that process in "late 2005, early 2006." FAC at 4. Therefore, even giving Plaintiff two years from "early ...