The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On August 23, 2010, defendants filed a motion to dismiss on the grounds that plaintiff failed to exhaust his administrative remedies prior to filing the instant action, that plaintiff's claims are barred by the statute of limitations, and that plaintiff has failed to state a cognizable civil rights claim. Plaintiff filed an opposition on September 29, 2010. Defendants filed a reply on October 18, 2010. For the reasons set forth below, the undersigned recommends that defendants' motion be granted and this case dismissed.
Plaintiff is proceeding on his complaint filed March 24, 2010, against defendants M. Cherry, M. Hamilton, L. Martinez, and L. B. Reaves (collectively "defendants"). (Dkt. No. 15.) Plaintiff alleges defendants have wrongfully and continuously applied an "R" suffix designation to his file since January 4, 2001, in violation of his Fifth and Fourteenth Amendment rights. Plaintiff also challenges the 2007 re-designation of the "R" suffix. Plaintiff seeks declaratory and injunctive relief, costs, and any other relief the court deems just. (Dkt. No. 15 at 16.)
An inmate's housing assignment and the degree of staff supervision he or she will require are identified through his or her custody designation pursuant to California Code of Regulations, Title 15, § 3377.1. To further ensure the safety and security of other inmates, correctional personnel, and the general public, the letter "R" is attached as a suffix to the custody classification of inmates who have a history of specific sex offenses listed under California Penal Code § 290. Cal. Code Reg. title 15, § 3377.1(b).
Statute of Limitations - 2001 Application of "R" Suffix
Defendants first argue that plaintiff's claims 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).*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). 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.*fn2 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 first became aware of the alleged wrongful application of the "R" suffix designation at High Desert State Prison ("HDSP") on January 4, 2001, where an initial classification committee found imposition of the "R" suffix designation was appropriate "based on Info in POR*fn3 showing the defendant's intent to rape the victim." (Dkt. No. 15 at 58.) Because this decision was rendered on January 4, 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. Therefore, plaintiff was required to bring his civil rights claims on or before January 3, 2004. Plaintiff is entitled to tolling from March 30, 2001, to the date his request for second level review was decided, because he was attempting to exhaust the administrative grievance process. However, plaintiff concedes he did not complete the grievance process through the required third level of review. Plaintiff did not file the instant action until September 14, 2009. (Dkt. No. 1 at 13.) The brief period plaintiff spent pursuing the first and second levels of review are insufficient to cover the eight year period between the filing of his grievances and the filing of the instant action.
Plaintiff argues he had to wait until he had the corrected minute order he believed he needed to demonstrate he was not convicted of a sex offense before he could complete exhaustion of this issue. However, this minute order was not required. The judgment form held by prison officials clearly demonstrated plaintiff had only been convicted of false imprisonment. Prison officials obtained the information used to affix the "R" suffix designation from the probation officer's report that described, in detail, the circumstances surrounding plaintiff's crime. The minute order had no impact on the facts of the crime; thus, receipt of this document was of no consequence.
But even assuming, arguendo, the court were to grant plaintiff additional time for the receipt of this corrected minute order, it would not be sufficient to toll the statute of limitations period. Federal courts generally apply the forum state's law regarding equitable tolling. Fink, 192 F.3d at 914. Under California law, 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 ...