FINDINGS AND RECOMMENDATION RECOMMENDING GRANTING DEFENDANT CANO'S MOTION TO DISMISS (ECF No. 28) OBJECTIONS DUE WITHIN THIRTY DAYS FINDINGS AND RECOMMENDATION
Plaintiff Arthur T. Bussiere ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on May 26, 2010. (ECF No. 1.)
This action proceeds on Plaintiff's Complaint against Defendants Cano and Lopez for deliberate indifference in violation of the Eighth Amendment. (ECF Nos. 13 & 16.) Pending before the Court is Defendant Cano's Motion to Dismiss for failure to file suit within the applicable statute of limitations. (ECF No. 28.) Plaintiff filed his response on June 30, 2011. (ECF No. 33.) No reply was filed.
II. PLAINTIFF'S COMPLAINT SUMMARY
Plaintiff states that he was arrested for a sexual assault in a different state, but that he was not prosecuted. In California, Plaintiff was sentenced to sixteen years to life for second degree murder.
On August 10, 2001, Plaintiff arrived at Pleasant Valley State Prison. Plaintiff states that Defendant Cano erroneously placed an "R" designation on his custody status. The "R" designation is used to identify inmates who have a history of sex offenses. This change in his status endangered his safety because inmates identified as sex offenders are likely to be assaulted. Plaintiff states that Cano was aware of this danger. Plaintiff was then released to the general population. Plaintiff was assaulted on November 21, 2009 and twice on January 10, 2010 because of the "R" designation.
Defendant Cano argues that the action should be dismissed because Plaintiff did not file suit within the applicable statute of limitations. Defendant states that, pursuant to Section 335.1 of the California Code of Civil Procedure, Plaintiff's claims are subject a two year time limitation. Defendant further states that Plaintiff is also entitled to an additional two years of statutory tolling, Cal.Civ.Proc.Code § 352.1(a), for a total of four years within which Plaintiff had to file suit.
Defendant Cano states that Plaintiff appeared before him for a classification hearing on July 23, 2003. Defendant states that this hearing in 2003 was the first time Plaintiff was before him. Taking Plaintiff's claim that Defendant Cano changed Plaintiff's status as true, the July 23, 2003 hearing would have been when the change occurred. The change in designation would begin the statute of limitations clock ticking for an action against Defendant Cano. Defendant Cano states that to file within the time period, Plaintiff would have had to file this action by 2007. However, Plaintiff filed this action May 26, 2010, which is well beyond the expiration of the statute of limitations.
The majority of Plaintiff's arguments do not address the statute of limitations argument. However, Plaintiff does state that he had to suffer physical harm before he could file a civil action.
IV. LEGAL STANDARDS AND ANALYSIS
A. Motion to Dismiss Standard
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235--236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, rehearing denied, 396 U.S. 869 (1969). The Court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 ...