FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On November 25, 2009, defendant Weeks moved to dismiss this action, arguing that plaintiff's claim is barred by the applicable statute of limitations. Plaintiff has filed an opposition to defendant's motion. For the reasons set forth below, the court recommends that defendant's motion to dismiss be denied.
Plaintiff is proceeding on his original complaint against defendant Weeks. In his complaint, plaintiff alleges that on September 21, 2002, defendant escorted him to the exercise yard. (Compl. at 5.) Plaintiff contends that during this time, he was strip-searched and sexually and violently assaulted by defendant with a hand-held metal detector device. (Id.) Plaintiff alleges that the assault was unprovoked and was the culmination of prior acts of harassment by defendant. (Id.)
Plaintiff also alleges that on August 17, 2005, defendant Weeks was working as a yard officer, while plaintiff was assigned to work as a program office porter. (Compl., Attach.) Plaintiff alleges that on this day, defendant verbally harassed him. (Id.) According to plaintiff, the harassment continued and on November 1, 2005, defendant issued him a false rules violation for "mutual combat," which resulted in plaintiff's loss of time credits. (Id.) Plaintiff alleges that the write-up was a retaliatory act because he told defendant Weeks that he had not forgotten about the metal detector incident and that he had been discussing the matter with his psychiatrist. (Id.)
DEFENDANT'S MOTION TO DISMISS
Defendant argues that this action should be dismissed with prejudice because it is barred by the applicable statute of limitations. (Def.'s Mot. to Dismiss (MTD) at 4.) Defendant argues that the statute of limitations period for personal injury actions arising in 2002 is one year. (Id.) Defendant contends that this statute of limitations may be tolled for up to two years in actions brought by prisoners. (Id.) According to defendant, plaintiff's action is nevertheless time-barred because even with the maximum period of tolling, plaintiff had until September 21, 2005 to file his complaint but he did not commence this action until January 29, 2009. (Id.)
II. Plaintiff's Opposition
In opposition to the pending motion to dismiss, plaintiff first clarifies his claims.
Plaintiff explains that his reference to the November 1, 2005 rules violation charge for "mutual combat" is not a separate claim, but rather is intended to show defendant's culpability as it relates to the alleged assault on September 21, 2002. (See Pl.'s Opp'n to MTD (Opp'n) at 1.) According to plaintiff, the November 1, 2005 rules violation charge and his subsequent appeals with respect to that violation demonstrates that he has exhausted his administrative remedies. (Id.)
Next, plaintiff argues that this action is not barred by the statute of limitations because in September 2002, he suffered from, and has since been diagnosed with, schizoaffective disorder - bipolar type. (Id. at 2, Ex. A.) According to plaintiff, he has been on psychotropic medication since 1996 and has had difficulty prosecuting cases while suffering from his mental disabilities. (Id. at 2.)
I. Statute of Limitations for § 1983 Action
For actions brought pursuant to 42 U.S.C. § 1983, federal courts apply the forum state's statute of limitations period for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-80 (1985); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). Prior to January 1, 2003, the statute of limitations period in California for personal injury claims was one year. Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). Effective January 1, 2003, the statute of limitations period in California for the bringing of personal injury claims was extended to two years. Cal. Civ. Proc. Code § 335.1. The extension of the statute of limitations period to two years applies to all claims that were not yet barred by the then-applicable limitations period as of January 1, 2003. See Andonagui v. May Dept. Stores Co., 128 Cal. App. ...