The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner currently incarcerated at Ironwood State Prison in Blythe, California. Plaintiff proceeds, in forma pauperis and without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff's First Amended Complaint ("complaint" or "FAC") (Dkt. No. 24), pursuant to order of this court filed August 10, 2010 (Dkt. No. 21).*fn1 Presently pending before the court is defendants' motion to dismiss the complaint and this action in its entirety.*fn2 (Dkt. No. 38.) Plaintiff has filed an opposition to the motion. (Dkt. Nos. 48, 49 (Request for Judicial Notice).)*fn3 Defendants did not file a reply. For the reasons that follow, this court recommends that the motion to dismiss be granted in part and denied in part.
On February 27, 2004, plaintiff was sentenced to a life term, "with a minimum
custody of 55 years." (Dkt. No. 49 at 21-24.)*fn4 Plaintiff entered the California Department of Corrections and Rehabilitation ("CDCR") on April 21, 2004. (Dkt. No. 24 at 7, 14.) He was initially received at the California Correctional Institution ("CCI"), in Tehachapi, California; then transferred to California State Prison-Sacramento ("CSP-SAC") in July 2004. Plaintiff was transferred to California State Prison-Los Angeles County ("CSP-LAC") in March 2006. Plaintiff was thereafter moved to California Men's Colony ("CMC") on December 29, 2008, then to Ironwood State Prison ("ISP), via Centinela State Prison, on February 18, 2009.
This action, commenced July 9, 2009, challenges the conditions of plaintiff's confinement while housed at CSP-SAC. Plaintiff alleges that he was forced to participate in mental health programs and take psychotropic medications, and was improperly held in administrative segregation. Plaintiff further alleges that, while held in administrative segregation, he was denied access to his legal property and to the prison law library; that many of his legal documents were destroyed; that several of his administrative grievances were not processed; and that he was retaliated against for attempting to exercise his First Amendment rights. Plaintiff contends that he has "suffer[ed] adverse physical, mental, emotional, and spiritual permanent harms, which are atypical and significant hardships . . ." (Dkt. No. 24 at 14.)
When screening the complaint, pursuant to 28 U.S.C. § 1915A, this court determined that it appears to state potentially cognizable claims under the First, Eighth and Fourteenth Amendments to the United States Constitution. (Dkt. No. 21 at 11-20). Defendants move to dismiss all of plaintiff's claims premised on their contentions that: (1) claims accruing prior to July 9, 2005, are barred by the statute of limitations, and cannot be preserved by application of the "continuing violation doctrine," and (2) claims accruing after July 9, 2005, fail to state cognizable claims for relief.
A. Statute of Limitations
Section 1983 contains no statute of limitations. Federal courts apply the state's personal injury statute of limitations, subject to any state tolling provisions that are not inconsistent with federal law. Wallace v. Kato, 549 U.S. 384, 387 (2007); Wilson v. Garcia, 471 U.S. 261, 277 (1985); Azer v. Connell, 306 F.3d 930, 935-36 (9th Cir. 2002). Since January 1, 2003, the California statute of limitations for personal injury actions is two years. Cal. Code Civ. Proc. § 335.1; Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004). In addition, the statute of limitations is tolled for two years for prisoners serving less than a life sentence, provided the plaintiff was incarcerated at the time the claim accrued. Cal. Code Civ. Proc. § 352.1(a); Johnson v. State of California, 207 F.3d 650, 654 (9th Cir. 2000); Jones v. Blanas, 393 F.3d 918, 928 n.5 (9th Cir. 2004) (construing provision to include prisoners serving life sentences). Therefore, the effective statute of limitations for plaintiff's civil rights claims, which accrued after January 1, 2003, is four years.
This statute of limitations is further tolled for the period in which a prisoner administratively exhausted his underlying grievances, pursuant to the requirements of the Prison Litigation Reform Act ("PLRA"). See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005) ("the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process").
The statute of limitations commences on the date when the underlying cause of action accrues. "Although state law determines the length of the limitations period, 'federal law determines when a civil rights claim accrues.'" Azer, 306 F.3d 936 (quoting Morales v. City of Los Angeles, 214 F.3d 1151, 1153-54 (9th Cir. 2000). "Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).
These rules governing the timely filing of a prisoner civil rights action may in some circumstances be further qualified by application of the "continuing violation doctrine," as addressed by the parties herein. The continuing violation doctrine is an equitable doctrine designed "to prevent a defendant from using its earlier illegal conduct to avoid liability for later illegal conduct of the same sort." O'Loghlin v. County of Orange, 229 F.3d 871, 875 (9th Cir. 2000). To establish a continuing violation, a plaintiff must show "a series of related acts against a single individual ... that . . . are related closely enough to constitute a continuing violation." Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480-81 (9th Cir. 1989) (citation and internal quotation marks omitted).
As articulated in the employment context, the Ninth Circuit has "recognized two methods by which a plaintiff may establish a continuing violation. First, the plaintiff may show a serial violation by pointing to a series of related acts against one individual, of which at least one falls within the relevant period of limitations. . . . Second, a plaintiff may show a systematic policy or practice of discrimination that operated, in part, within the limitations period -- a systemic violation." Douglas v. California Dept. of Youth Authority, 271 F.3d 812, 822 (9th Cir. 2001) (footnote, citations and internal quotation marks omitted). "A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation." Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981) (citation omitted)). Stated differently, "mere continuing impact" from a past violation is not actionable under the continuing violation doctrine. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (citations and internal quotation marks omitted). "[T]he critical distinction in the continuing violation analysis is whether the plaintiff complains of the present consequence of a one time violation, which does not extend the limitations period, or the continuation of that violation into the present, which does." Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003) (citation omitted).
Although the Ninth Circuit has not applied the continuing violation doctrine to preserve a prisoner's civil rights claim, cf. Ngo v. Woodford, 539 F.3d 1108, 1109-10 (9th Cir. 2008) (rejecting application of doctrine to extend deadline for attorney's challenge to a prison decision), the doctrine has been so applied by courts within this circuit and by other circuits. As recently summarized by one Magistrate Judge:
Although the Ninth Circuit has not applied the continuing violation doctrine to Eighth Amendment deliberate indifference claims, several other circuits have. See Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001) (finding that continuous violation doctrine applied to defendants' deliberate indifference for the span of time that prison officials were aware of plaintiff's injury and allegedly refused to treat it); Lavellee v. Listi, 611 F.2d 1129, 1132 (5th Cir. 1980) ("[T]he [arrestee's] allegation of a failure to provide needed and requested medical attention constitutes a continuing tort, which does not accrue until the date medical attention is provided."); Neel v. Rehberg, 577 F.2d 262, 263-64 (5th Cir. 1978) (per curiam) (finding that where inmate alleged that jail officials failed to provide medical treatment over a three-month period, the continuous violation doctrine applied and the statute of limitations did not begin to run until the end of that period); see also Evans v. County of San Diego, No. 06-CV-0877 JM (RBB), 2008 WL 842459, at *12 (S.D. Cal. Mar. 27, 2008) (applying continuing violation doctrine to prisoner's Eighth Amendment medical treatment claim).
Martin v. Woodford, 2010 WL 2773235, at *5 (E.D. Cal. 2010); see also Watson v. Sisto, 2011 WL 533716, *11 (E.D. Cal. 2011) (applying continuing violation doctrine to find no statute of limitations bar to prisoner's claim of ongoing inadequate medical care); Hall v. Pliler, 2009 WL 2043361, *12 (E.D. Cal. 2009) (noting possible application of continuing violation doctrine provided that the specific acts challenged by the prisoner "are instances of some broader policy," such as "an alleged ongoing policy of discrimination"); Ashker v. Schwarzenegger, 2009 WL 801557, *16 n.9 and related text (N.D. Cal. 2009) (finding possible application of continuing violation doctrine to prisoner's due process claim, provided that it was "premised on a systemic policy or practice of discrimination . . .because such policy continually deters the plaintiff from seeking full rights or threatens to adversely affect the plaintiff in the future"); K'Napp v. Hickman, 2008 WL 495755, *6 (E.D. Cal. 2008) (applying continuing violation doctrine to find no statute of limitations bar to prisoner's claims of "ongoing violations as the result of a 'campaign' or policy of retaliation that persists 'unabated'"); Bruce v. Woodford, 2010 WL 3036483, *5-7 (E.D. Cal. 2010) (finding that continuing violation doctrine preserved prisoner's due process, retaliation, and Eighth Amendment claims).
In evaluating the timeliness of plaintiff's claims, this court considers each of the factors noted above, including the continuing violations doctrine.
B. Failure to State a Cognizable Claim
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts "all facts alleged as true and construes them in the light most favorable to the plaintiff." County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n.1 (9th Cir. 2009). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). However, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original). The incorporation by reference doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant ...