The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATION
Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is a motion to dismiss filed by defendants J. Dovey, A. Ramirez-Palmer, S. Hall, and P. Van Cor,*fn1 on the grounds that plaintiff's claims are time-barred, plaintiff has failed to exhaust his administrative remedies, and has failed to state a claim. (Dkt. No. 59.) Plaintiff filed an opposition on January 19, 2010. Moving defendants filed a reply on February 2, 2010. For the reasons that follow, the court recommends that the motion be granted as set forth below, and this action be dismissed.
In Rushdan v. Weden, et al., Case No. 3:90-cv-2895,*fn2 plaintiff filed a civil rights action based on the alleged denial of medical care and the alleged denial of access to appropriate and competent medical care for plaintiff's keloid condition. (See Dkt. No. 37 at 3.)
On December 22, 1993, the Honorable Thelton E. Henderson, United States District Judge for the Northern District of California, dismissed Case No. 3:90-cv-2895. Id. The dismissal was a 90-day conditional dismissal. (Id., Dkt. No. 115.) On February 28, 1994, a stipulation and order was entered dismissing the case with prejudice. (Id., Dkt. No. 116.) Neither of these docket entries reference a compromise and release or refer to an attached compromise and release,*fn3 and there is no order retaining jurisdiction over the action. Id. Nevertheless, it appears that these dismissals were based on a compromise and release (hereafter "agreement") by which the parties reached settlement of the claims raised in Northern District Case No. 3:90-cv-2895. (Dkt. No. 37 at 3-11.) Specifically, the agreement apparently provided for plaintiff to receive medical treatment for his keloid condition from U.C.S.F. dermatologist Dr. Roy C. Grekin, housing at California Medical Facility ("CMF") during such treatment, as well as single cell status until the completion of surgery. (Dkt. No. 37 at 3-11.) The agreement also provided for the California Department of Corrections (now California Department of Corrections and Rehabilitation) "to fully comply with any and all prescriptions and/or orders for medical care . . . by Dr. Grekin." (Dkt. No. 37 at 5-6.) Plaintiff was to be "housed in a single cell with a lower bunk for a period not less than fifteen (15) months" beginning the date the agreement was signed, and he was to be "housed at CMF for the period that he is receiving medical care from Dr. Grekin."*fn4 (Dkt. No. 37 at 6.)
The agreement provides that "in the event that any provision of this Agreement is not implemented the Claimant (plaintiff) may bring an action against the Director to obtain performance of any of the provisions of this Agreement." (Dkt. No. 37 at 7.) The agreement further provides "that the terms of this Agreement with respect to his responsibility to implement this Agreement are contractual; and not a mere recital." (Dkt No. 37 at 10.)
On December 7, 2006, plaintiff filed an amended complaint ("AC") alleging various violations of the terms of the 1994 settlement agreement and the Eighth Amendment, and raising various state law claims. Plaintiff seeks monetary damages only.*fn5
On January 26, 2007, this action was dismissed based on lack of jurisdiction.*fn6 On December 20, 2008, the Court of Appeals for the Ninth Circuit vacated the judgment and remanded the action finding that this court had jurisdiction based on plaintiff's Eighth Amendment claims and therefore may have had supplemental jurisdiction over plaintiff's claim for breach of the settlement agreement, citing 18 U.S.C. § 3626(c), (g)(1), (g)(6) (distinguishing between "consent decrees" and "private settlement agreements" in actions concerning prison conditions, and explaining that only "private settlement agreements" are not enforceable in federal court). (Dkt. No. 35.)
III. Request for Judicial Notice
Defendants filed a request for judicial notice ("RJN") (Dkt. No. 59 at 3.) A court may take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) ("[W]e 'may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue'"). Therefore, this court takes judicial notice of the court records in the following cases: 1) Eastern District Case No. 01-cv-0364 LKK GGH P filed against defendants Cal Terhune, Ana Ramirez-Palmer and Sgt. S. Hall on February 22, 2001;*fn7 and 2) Eastern District Case No. 02-cv-1468 EJG PAN P, filed against defendants Edward Alameda, Ana Ramirez-Palmer, G. Stratton, T. Permbula, and Sgt. S. Hall on July 5, 2002.*fn8 (Dkt. No. 59, Exs. A-H.)
"On a motion to dismiss for failure to state a claim [pursuant to Fed. R. Civ. P. 12(b)(6) ], the court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (citation omitted).
a. Statute of Limitations
Defendants argue that plaintiff's claims against defendants Ramirez-Palmer and Sgt. Hall are barred by the 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.' . . . " TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (citation omitted).
California law determines the applicable statute of limitations in this § 1983 action. Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Until December 31, 2002, the applicable state limitations period was one year. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (citing Cal. Civ. Proc. Code § 340(3) (West Supp. 2002); see also Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004).*fn9 Effective January 1, 2003, the applicable California statute of limitations was extended to two years. See Jones, 393 F.3d at 927 (citing Cal. Civ. Proc. Code § 335.1). However, the new statute of limitations period does not apply retroactively. Maldonado, 370 F.3d at 955. California law also tolls for two years the limitations period for inmates "imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life." Cal. Civ. Proc. Code § 352.1.*fn10
The Ninth Circuit has held that a limitations period may be tolled while a claimant pursues an administrative remedy. Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001.)
Plaintiff's allegations as to defendant Ramirez-Palmer (AC, ¶ 32) and defendant Hall (AC, ¶ 32) all occurred at the California Medical Facility ("CMF") where plaintiff was housed from 1993 to September 11, 2001. (AC, at 6, 16.) Because the last possible date defendants Ramirez-Palmer and Hall could have violated plaintiff's constitutional rights was September 11, 2001, the applicable statute of limitations period was one year because it precedes the 2003 extension of the limitations period. Maldonado, 370 F.3d at 955.
Plaintiff is entitled to tolling of the statute of limitations period for an additional two years. Jones, 393 F.3d at 927 n.5. Thus, plaintiff was required to bring his civil rights claims against defendants Ramirez-Palmer and Hall on or before September 11, 2003. Plaintiff did not file the instant action until June 5, 2006. Plaintiff is not entitled to tolling for any time he attempted to initiate the administrative grievance process because he did not file his grievance until May 26, 2004, after the statute of limitation period expired.
Moreover, even if this court applied the additional year of tolling granted in 2003, extending his filing deadline to September 11, 2004, and plaintiff were granted tolling for the duration of his initial grievance, appeal No. SAC-H-04-01038, liberally construed as against Ramirez-Palmer, signed March 18, 2004, and cancelled November 30, 2004 (Dkt. No. 59-5 at 11), a period of just over eight months, his filing would have been due in federal court in early June, 2005. The instant filing occurred approximately one year too late.*fn11
Plaintiff argues that his claims against defendants Ramirez-Palmer and Hall are based on the 1994 settlement agreement with the Department of Corrections and the agreement contains no statute of limitations. However, the plain language of the agreement demonstrates that plaintiff entered into the agreement with the California Department of Corrections. (Dkt. No. 37 at 3.) Neither defendant Ramirez-Palmer or defendant Hall are ...