The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE DENIED (Doc. 68.)
OBJECTIONS, IF ANY, DUE IN TWENTY DAYS
I. RELEVANT PROCEDURAL HISTORY
Robert P. Benyamini ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on August 21, 2006. (Doc. 1.) This action now proceeds with the Third Amended Complaint, filed on May 3, 2008, on Plaintiff's Eighth Amendment claims for adverse conditions of confinement against defendants Manjuano, Wilcox, Wilkerson, and O'Grady. (Doc. 35.) On July 3, 2010, defendants Wilcox, Wilkerson, and O'Grady ("Defendants") filed a motion to dismiss this action based on the expiration of the statute of limitations. (Doc. 68.) On July 9, 2010, Plaintiff filed an opposition to the motion. (Doc. 69.) On July 13, 2010, Defendants filed a reply to Plaintiff's opposition. (Doc. 70.) Defendants' motion to dismiss is now before the Court.
II. SUMMARY OF THE THIRD AMENDED COMPLAINT*fn1
The events at issue in this action allegedly occurred at the Modesto County Jail, where Plaintiff was housed at that time. Plaintiff suffers from extreme claustrophobia and was housed in a small cell in segregation for approximately five months, commencing on June 25, 2003. Plaintiff was not given a reason for the segregation and was not charged with or convicted of any disciplinary violations. Plaintiff alleges that his confinement in segregation caused him extreme physical and mental problems due to his claustrophobia, and that defendants Manjuano, Wilcox, Wilkerson, and O'Grady were aware of the situation but failed to take any action.
III. RULE 12(b)(6) MOTION TO DISMISS CASE AS TIME-BARRED BY STATUTE OF LIMITATIONS
A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the complaint. "A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when 'the running of the statute is apparent on the face of the complaint.'" Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir.2006)). "'[A] complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.'" Von Saher, 592 F.3d at 969 (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir.1995)). "[W]here the issue of limitations requires determination of when a claim begins to accrue, the complaint should be dismissed only if the evidence is so clear that there is no genuine factual issue and the determination can be made as a matter of law." Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 591 (9th Cir. 1990); In re Swine Flu Prod. Liab. Litig., 764 F.2d 637, 638 (9th Cir.1985); Lundy v. Union Carbide Corp., 695 F.2d 394, 397-98 (9th Cir.1982).
Defendants argue that this action against them should be dismissed because Plaintiff's claims are barred by the statute of limitations under section 335.1 of the California Code of Civil Procedure. Defendants argue that the applicable statute of limitations for personal injury actions was two years when Plaintiff's action accrued against them in late 2003. Defendants argue that because Plaintiff's complaint against them was filed on August 21, 2006, nearly three years after the fact, the entire action against them is time-barred.
In opposition, Plaintiff argues that his lawsuit was not filed after the expiration of the statute of limitations, because the statute of limitations for a person in prison with a determinate term is four years, two years initially under § 335.1, and two years tolled under § 352.1. Plaintiff asserts that he has been in prison every day since the occurrence of the events at issue in this action.
In reply, Defendants concede that it appears Plaintiff can avoid the statute of limitations based upon the tolling issue, and Defendants request that the Court either grant their motion to dismiss with leave to amend or, in the alternative, deny the motion.
A. Statute of Limitations
Federal law determines when a claim accrues, and "[u]nder federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Because section 1983 contains no specific statute of limitation, federal courts should apply the forum state's statute of limitations for personal injury actions. Jones v. Blanas, 393 F.3d 918, 927 (2004); Maldonado, 370 F.3d at 954; Fink, 192 F.3d at 914. California's statute of limitations for personal injury actions was extended from one year to two years effective January 1, 2003. The two-year statute of limitations ...