FINDINGS AND RECOMMENDATION
RECOMMENDING THAT THIS ACTION BE DISMISSED AS TIME BARRED AND FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1)
I. Factual and Procedural Background
Roosevelt Smith ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On August 22, 2011, Plaintiff filed his original complaint. (Doc. 1). In addition to presenting claims stemming from conduct which occurred September 3, 1994, Plaintiff also concedes in his complaint that he has not exhausted administrative remedies. (Doc. 1 at 3-4). On September 9, 2011, the Court issued an order to show cause as to why the action should not be dismissed on the grounds of being time barred, for failure to state a claim and for failure to exhaust administrative remedies. *fn1 (Doc. 5). On September 29, 2011, Plaintiff filed a response to the Court's order to show cause. (Doc. 11).
II. 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 apply the forum state's statute of limitations.
Jones v. Blanas , 393 F.3d 918, 927 (2004);
Maldonado , 370 F.3d at 954; Fink ,
192 F.3d at 914. California's statute Cal. Civ. Proc. Code § 338
creates a three year statute of limitations for "an action upon a
liability created by statute . . ." applies since section 1983 is the
statute that creates liability for Plaintiff's claims of violations of
equal protection rights due to racial profiling. *fn2
Cal. Civ. Proc. Code § 338 (West 2010);
Jones , 393 F.3d at 927.
In actions where the federal court borrows the state statute of limitations, courts should also borrow all applicable provisions for tolling the limitations period found in state law. Jones , 393 F.3d at 927. Under California law, prisoners who at the time the cause of action accrued were either imprisoned on a criminal charge or serving a sentence of less than life for a criminal conviction, enjoy a two-year tolling provision for damages actions. Cal. Civ. Proc. Code § 352.1 (West 2010).
Plaintiff argues in his response that the claims stemming from 1994 should not be time-barred because at the time of the alleged violations, Plaintiff was functionally illiterate with an educational test score of 2.9. (Doc. 11 at 3). Plaintiff argues that since he did not know how to read the law or understand court proceedings, he did know nor should have known of the violation. (Doc. 11 at 3). However, under the California discovery rule, 'the plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof.' O'Connor v. Boeing North American, Inc. , 311 F.3d 1139, 1148 (9th Cir. 2002) (quoting Norgart v. Upjohn Co. , 21 Cal.4th 383, 981 P.2d 79, 88) (Cal. 1999). Even if Plaintiff were to establish that he was mentally incapacitated in order to avail himself to tolling, under California law, "[w]hile a plaintiff's mental incapacity generally tolls the running of the statute of limitations, the [tolling] statute expressly exempts an action against a public entity on which a claim must be filed." Paniagua v. Orange County Fire Authority , 149 Cal.App.4th 83, 89; 56 Cal.Rptr.3d 746, 750 (Cal. App. 2007) (citing Cal. Civ. Proc. Code § 352.1).
As Plaintiff's claims involve conduct which occurred September 3, 1994, and Plaintiff has failed to demonstrate that additional tolling should apply to him on the basis of his illiteracy, Plaintiff's claims arising from events which occurred in 1994 are time-barred. See O'Connor v. Boeing North American, Inc. , 311 F.3d 1139, 1148 (9th Cir. 2002); Paniagua v. Orange County Fire Authority , 149 Cal.App.4th 83, 89; 56 Cal.Rptr.3d 746, 750 (Cal. App. 2007); Cal. Civ. Proc. Code § 352.1; Cal. Civ. Proc. Code § 338; Cal. Civ. Proc. Code § 352.1. Additionally, since it is apparent that Plaintiff cannot prove any set of facts that would establish the timeliness of his action, the Court recommends that Plaintiff's claim is dismissed for failure to state a claim upon which relief could be granted. See Von Saher v. Norton Simon Museum of Art at Pasadena , 592 F.3d 954, 969 (9th Cir. 2010).
III. Conclusion and Recommendation
Based on the foregoing, the Court HEREBY RECOMMENDS: That Plaintiff's action filed on August 22, 2011, be dismissed with prejudice as time-barred and failure to state a claim upon which relief can be granted.
These Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the provisions
of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days
after being served with these Findings and Recommendations,
plaintiff may file written objections with the court. The document
should be captioned "Objections to Magistrate Judge's Findings and
Recommendations." Plaintiff is advised that failure to file objections
within the specified time may waive the right to appeal the District
Court's order. Martinez v. Ylst , 951 F.2d 1153