The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT'S MOTION TO DISMISS BE GRANTED (Doc. 54) OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Claudell Earl Martin ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 2, 2009, Defendant McGuinness filed a motion to dismiss on the grounds that Plaintiff's claim against him is barred by the applicable statute of limitations. (Doc. #54.) On November 3, 2009, Plaintiff filed an opposition to Defendant's motion to dismiss.*fn1 (Doc. #57.) On November 12, 2009, Defendant filed a reply to Plaintiff's opposition. (Doc. #58.) On February 17, 2010, Plaintiff filed an "Amended Objection to Defendant McGuinness[sic] Request for Dismissal."*fn2 (Doc. #74.)
A. Plaintiff's Claim Against Defendant McGuinness
Plaintiff's complaint concerns events that occurred while Plaintiff was incarcerated at Kern Valley State Prison (KVSP). Plaintiff claims that Defendant McGuinness is a physician at KVSP. (Compl. 6.) Plaintiff alleges that he has heart-related health issues. (Compl. 8.) Plaintiff was transferred from Corcoran State Prison to KVSP on July 27, 2005. (Compl. 8.) Plaintiff was seen by Defendant McGuinness on August 5, 2005. (Compl. 8.) Plaintiff told McGuinness that he only had a few days worth of his heart medication and McGuinness told Plaintiff that he would receive more heart medication in a couple days. (Compl. 8-9.) However, Plaintiff complains that he did not receive any of his prescribed medications until one month after he saw McGuinness. (Compl. 9.)
On August 11, 2005, Plaintiff still had not received his medication and filed a "602 grievance" about his medication. (Compl. 9.) Plaintiff filed a second grievance on September 5, 2005 after he "only received a portion of [his] medication." (Compl. 9.) Plaintiff claims that McGuinness knew that KVSP did not have sufficient medical facilities to provide treatment for Plaintiff. (Compl. 13.) Specifically, Plaintiff claims McGuinness knew that KVSP did not have a pharmacy. (Compl. 13.) Plaintiff contends that McGuinness was deliberately indifferent to Plaintiff's medical needs because McGuinness should have arranged for Plaintiff to be transferred back to Corcoran State Prison in order to receive proper treatment. (Compl. 13.)
B. Defendant's Motion to Dismiss
Defendant McGuinness argues that he is entitled to dismissal on the ground that Plaintiff's claim against him is barred by the applicable statute of limitations. Defendant argues that a two-year statute of limitations governs Plaintiff's Section 1983 claim against Defendant. (Mem. of P. & A. in Supp. of Mot. to Dismiss Def. McGuinness 2:22-3:5.) This action was initiated on March 21, 2008. Defendant argues that any claim that accrued prior to March 22, 2006, is barred by the statute of limitations. (P. & A. in Supp. of Mot. to Dismiss 4:3-4.) Defendant notes that Plaintiff claims that Defendant examined Plaintiff and prescribed treatment on August 5, 2005. (P. & A. in Supp. of Mot. to Dismiss 4:4-5.) Defendant further notes that Plaintiff filed an administrative appeal on August 11, 2005 about his medication. (P. & A. in Supp. of Mot. to Dismiss 4:6-7.) Since the events in his complaint took place long before March 22, 2006, Defendant argues that Plaintiff's claim against Defendant McGuinness is barred by the statute of limitations.
C. Plaintiff's Opposition
Plaintiff argues that his claim against Defendant McGuinness is not barred by the statute of limitations because his claim should not accrue until he knew that McGuinness was liable. Defendant argues that at the time he filed his grievances, "Plaintiff [had] not accused anyone in specific for the wrong being done to him." (Objection to Defendant McGuinness' Request for Dismissal 2.) Specifically, Plaintiff claims that when he filed his administrative grievances, he did not know that McGuinness was "breaking the law by not giving him his medication." (Objection 5.) Plaintiff further argues that he is entitled to tolling of the statute of limitations because "the source of Plaintiff's mis-understanding[sic] can be-shown[sic] to be the misrepresentations by the defendant or its agents." (Objection 5.) Plaintiff further contends that "after being stop[sic] by roadblock and road block . . . he simply felt it was nothing he could do until his celly came into his cell and . . . help[sic] Plaintiff to refile his action." (Objection 6.) In sum, Plaintiff argues that the Court should not dismiss this complaint on statute of limitations grounds because "the administration can not block the way of plaintiff making the bar . . .and then expect the federal court not to deal with the violations of federal law." (Objection 6.)
Defendant argues that the attachment to Plaintiff's complaint demonstrates that Plaintiff had actual knowledge of the claimed injury and who was allegedly responsible on August 11, 2005. (Reply of Def. McGuinness to Opp'n to Mot. to Dismiss 3:1-6.) Defendant notes that Plaintiff submitted an administrative appeal on August 11, 2005 that asserted that his medications had run out and that the failure to provide him with medication constituted deliberate indifference. (Reply 3:3-6.) Plaintiff's appeal was granted at the informal level and the response stated that Plaintiff was seen by McGuinness on August 5, 2005. (Reply 3:6-8.) Plaintiff pursued his appeal to the first formal level of September 5, 2005. (Reply 3:8-9.) In his appeal, Plaintiff identified the medication that he believed he should be receiving and described the failure to provide those medications as "gross incompetence," and that the issue would be "remedied in a court setting for monetary value."
(Reply 3:9-12.) Defendant argues that the appeals demonstrate that Plaintiff was fully aware of all the facts related to his injuries in 2005.
Defendant also argues that Plaintiff is not entitled to tolling of the statute of limitations. Although Plaintiff argues that Defendant's misrepresentations prevented Plaintiff from filing on time, Defendant argues that Plaintiff has not identified anything that McGuinness did to ...