The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF'S CLAIMS BE DISMISSED
OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Vincent C. Bruce ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On September 4, 2009, Defendants Adams, Clark, Frauenheim, Hense, Lloren, Schottgen, Tripp, and Wan filed a motion to dismiss on the grounds that Plaintiff's claims are barred by the applicable statute of limitations. (Doc. #37.) Defendants Fulks, Fields, and Ward joined the motion to dismiss on May 24, 2010.*fn1 (Doc. #67.) On November 25, 2009, Plaintiff filed an opposition to Defendants' motion to dismiss along with a motion requesting that the Court excuse Plaintiff's late filing.*fn2 (Doc. #51, 52, 53.) On January 6, 2010, Defendants filed a reply to Plaintiff's opposition. (Doc. #59.) On February 1, 2010, Plaintiff filed a motion requesting that the Court strike portions of Defendants' reply because it raised new arguments and further requested that the Court allow Plaintiff to supplement his opposition with new arguments. (Doc. #60.) For the reasons set forth below, the Court finds that Plaintiff's claims are barred by the statute of limitations and recommends that Plaintiff's complaint be dismissed.
This action proceeds on Plaintiff's third amended complaint, filed on March 16, 2009. (Doc #19.) Plaintiff claims that Defendants retaliated against Plaintiff for filing grievances against prison officials and for Plaintiff's activities as a jailhouse lawyer. At the time of the events described in his complaint, Plaintiff was housed at the California Substance Abuse Treatment Facility ("CSATF"). (Third Am. Compl. ¶ 1.) Plaintiff alleges that he was elected as a member of the "Men's Advisory Council" as an "inmate representative." (Third Am. Compl. ¶ 18.) The Men's Advisory Council represents inmates by voicing concerns and complaints to the warden and other prison officials. (Third Am. Compl. ¶ 18.) On February 27, 2004, approximately six dozen inmates, including Plaintiff, engaged in a hunger strike in response to restrictive policies that were implemented by prison officials between April 2002 and February 2004. (Third Am. Compl. ¶¶ 19-20.)
Plaintiff presented the inmates' grievances to Defendants Fulks and Wan. (Third Am. Compl. ¶ 21.) Fulks told Plaintiff that if the hunger strike did not end, there would be repercussions. (Third Am. Compl. ¶ 21.) Other inmates joined the hunger strike and local newspapers published articles about the hunger strike and the inmates' complaints. (Third Am. Compl. ¶ 23.) On February 29, 2008, Defendants Adams, Sanchez, Clark, and Fulks decided to "lock up" Plaintiff and limit their access to the media. (Third Am. Compl. ¶ 24.) Adams, Sanchez, Clark, and Fulks told the chairman of the Men's Advisory Council that Plaintiff and two other fasting inmates were being transferred to Pelican Bay State Prison, the "most severe segregation unit." (Third Am. Compl. ¶ 25.) Plaintiff complains that a "SHU term" (segregated housing unit term) can only be given to an inmate that is found guilty of serious misconduct. (Third Am. Compl. ¶ 26.) Plaintiff was charged with "Conspiracy to Assault Staff and Orchestrating A Hunger Strike" and was placed in segregation. (Third Am. Compl. ¶ 27.) Plaintiff was "exonerated" of the conspiracy to assault staff charge but received a disciplinary report for "Inciting A Hunger Strike." (Third Am. Compl. ¶ 28.) Plaintiff complains that there is no written rule prohibiting the participation in a hunger strike. (Third Am. Compl. ¶ 33.) Plaintiff argues that he was placed in segregation and charged with disciplinary violations in retaliation for Plaintiff's history of filing grievances and acting as a jailhouse lawyer. (Third Am. Compl. ¶ 34.)
Plaintiff was eventually found guilty of the disciplinary charge on February 3, 2005. (Third Am. Compl. ¶ 39.) Plaintiff received a twelve (12) month SHU term and was transferred to another prison. (Third Am. Compl. ¶ 42.) Plaintiff contends that his transfer was in retaliation for his activities as an advocate serving on behalf of other inmates. (Third Am. Compl. ¶ 43.) Plaintiff also contends that his confinement in disciplinary segregation for more than 56 weeks and the imposition of a 12 month SHU term constituted a deprivation of a liberty interest protected under the Due Process Clause. (Third Am. Compl. ¶ 51.) Plaintiff argues that his due process rights were violated because he was deprived of this liberty interest as a punishment for conduct that was not clearly prohibited under prison rules. Plaintiff complains that prison officials did not give Plaintiff reasonable notice that participating in a hunger strike was sanctionable conduct.
Plaintiff also complains that when he was housed in segregation from February 2004 to April 2005, he was not given adequate clothing. (Third Am. Compl. ¶¶ 55-75.) Plaintiff complains that the thin clothing he was given was inadequate to protect him during periods of cold weather. (Third Am. Compl. ¶ 58.) Plaintiff filed grievances about the inadequate clothing, but they were ignored by Defendant Schottgen, Fields, and Adams. Plaintiff contends that the denial of adequate clothing constituted cruel and unusual punishment prohibited by the Eighth Amendment.
On April 23, 2009, the Court screened Plaintiff's complaint and found that Plaintiff stated cognizable claims for relief under Section 1983 against: (1) Defendants Adams, Sanchez, Hense, Ward, Clark, Fulks, Wan, Frauenheim, Lloren, Fields, and Tripp for retaliation against Plaintiff's exercise of his First Amendment rights, (2) Defendants Adams, Sanchez, Hense, Ward, Clark, Fulks, Wan, Lloren, Fields, and Trip for violation of the Due Process Clause of the Fourteenth Amendment, and (3) Defendants Adams, Schottgen, and Fields for failing to provide Plaintiff with adequate clothing in violation of the Eighth Amendment.*fn3
B. Defendants' Motion to Dismiss
In their motion to dismiss, Defendants argue that Plaintiff's claims should be dismissed on the grounds that Plaintiff's claims are barred by the applicable statute of limitations. (Defs.' Not. of Mot. and Mot. to Dismiss 1:21-24.) Defendants argue that the applicable statute of limitations for Plaintiff's claims is two (2) years. (Mem. of P. & A. in Supp. of Mot. to Dismiss 2:10-3:6.) Defendants note that Plaintiff filed this action on February 20, 2007 and, therefore, any claim based on events occurring prior to February 20, 2005 is barred by the statute of limitations. (P. & A. in Supp. of Mot. to Dismiss 4:4-6.)
With respect to Plaintiff's due process claims, Defendants argue that the final disciplinary hearing was conducted on February 3, 2005. (P. & A. in Supp. of Mot. to Dismiss 4:18-21.) It was at that hearing where Plaintiff was given a twelve (12) month SHU term and transferred to Pelican Bay. (P. & A. in Supp. of Mot. to Dismiss 4:18-21.)
With respect to Plaintiff's retaliation claims, Defendants argue that there are no allegations in Plaintiff's third amended complaint of any retaliatory act occurring after February 19, 2005. (P. & A. in Supp. of Mot. to Dismiss 4:25-27.)
With respect to Plaintiff's Eighth Amendment claims, Defendants argue that Plaintiff's claims should be limited to the time Plaintiff was confined in segregation after February 20, 2005.
(P. & A. in Supp. of Mot. to Dismiss 5:1-13.) Plaintiff claims that he was confined in segregation without adequate clothing between February 2004 and April 2005. (P. & A. in Supp. of Mot. to Dismiss 5:2-3.)
C. Plaintiff's Opposition
In his opposition, Plaintiff contends that his claims are not untimely because he was a victim of a pattern of retaliation and harassment and the statute of limitations period should not begin to accrue until the retaliation and harassment stops. (Pl.'s Opp'n to Mot. to Dismiss; Decl. of Pl. 1.) Further, Plaintiff argues that the statute of limitations period should be tolled and that Plaintiff should be given an opportunity to present extrinsic evidence to support his tolling argument. (Opp'n 1.)
Plaintiff contends that Defendants' actions constitute an ongoing campaign of retaliation and that the limitations period should not accrue until the retaliation stops. (Opp'n 3.) With respect to his Eighth Amendment claims, Plaintiff contends that the deprivation of sufficient clothing was also an ongoing ...