The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner and is proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b)(1),(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
Where the running of the statute of limitations is apparent on the face of the complaint, dismissal for failure to state a claim is proper. See Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). California law determines the applicable statute of limitations in this § 1983 action. See Wilson v. Garcia, 471 U.S. 261 (1985). 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).*fn1 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). 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.*fn2
Moreover, the statute of limitations for a federal civil rights claim is tolled while a prisoner completes the administrative grievance process deemed mandatory by the Prison Litigation Reform Act, 42 U.S.C. § 1997e (a). Porter v. Nussle, 534 U.S. 516, 524 (2002); Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005).
By this action, plaintiff claims that his rights under the Eighth Amendment were violated by defendants' deliberate indifference to his serious medical needs, specifically, timely provision of medically necessary treatment for a nose injury. On April 26, 2003,*fn3 plaintiff fell and injured his nose. (Compl. at 6.) Plaintiff alleges that defendant Rohlfing denied him an xray, and defendants Rohlfing, James, Patton, Mangis, Dial, Dickinson and Wilkerson, all members of the MAR committee, denied his request to be seen by an ear, nose and throat specialist. While not entirely clear, it appears plaintiff sought additional medical treatment from April 26, 2003 through August 21, 2003, during which time he also sought referrals to a specialist through the MAR committee.
In the instant complaint, plaintiff failed to provide dates for the exhaustion of administrative remedies. However, in Case No. 07-cv-1428 FCD EFB P, plaintiff states the second level appeal was partially granted on December 8, 2003. December 8, 2003 is the last date provided in connection with the exhaustion of administrative remedies.
Presuming the date plaintiff's claim accrued was August 21, 2003, the date plaintiff's last request was made, and the statute of limitations was tolled until December 8, 2003 during the exhaustion of administrative remedies, plaintiff had until December 9, 2007 to file a civil rights action arising from those events, in accordance with the provisions of California Civil Procedure Code §§ 340(3) and 352.1. However, the instant complaint was not filed until July 21, 2010, over two years and seven months too late. Accordingly, plaintiff's complaint is time-barred unless subject to equitable tolling.
Generally, federal courts also apply the forum state's law regarding equitable tolling. Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Under California law, however, a plaintiff must meet three conditions to equitably toll a statute of limitations: (1) he must have diligently pursued his claim; (2) his situation must be the product of forces beyond his control; and (3) the defendants must not be prejudiced by the application of equitable tolling. See Hull v. Central Pathology Serv. Med. Clinic, 28 Cal.App.4th ...