The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. This matter proceeds on a second amended complaint, filed on July 12, 2011,*fn1 naming four defendants, Mercy Folsom Hospital, Health Care Manager & Chief Medical Officer Dr. P. Sahota, Dr. Jew and Reg. Nurse Rebecca Asp. Defendants Sahota, Jew and Asp have answered the second amended complaint. Pending before the court are: 1) defendant Mercy Folsom Hospital's*fn2 motion to dismiss, filed on January 3, 2012, to which plaintiff filed his opposition on January 23, 2012, after which defendant Mercy Hospital filed a reply on January 26, 2012; 2) defendant Mercy Hospital's motion to strike, filed on January 3, 2012, to which plaintiff filed his opposition on January 26, 2012, after which defendant Mercy Hospital filed a reply on February 1, 2012.
Plaintiff alleges that defendant Mercy Hospital was a medical entity "under contract by the California Department of Corrections and Rehabilitation [CDCR]." Second Amended Complaint (SAC), p. 3. The gravamen of plaintiff's second amended complaint with respect to defendant Mercy Hospital (hereafter, MH), is that after plaintiff suffered a broken left arm on May 26, 2008, during a game of baseball at California State Prison-Sacramento (CSPS), once plaintiff was transported to defendant MH, plaintiff received inadequate medical care in violation of his Eighth Amendment rights. Specifically, plaintiff alleges that as to defendant MH, his arm was x-rayed and it was determined that he had suffered a total break of his left arm radius [or radial] bone, but, nevertheless, defendant MH only provided plaintiff with an ice-pack and some aspirin, informed plaintiff that it does not operate on prisoners and that he should have been sent to the University of California, Davis Medical Center. Plaintiff was sent back to CSPS where he was returned to his cell without medical treatment for 24 hours. Plaintiff seeks compensatory and punitive damages "as provided by statute." See Second Amended Complaint (SAC), pp. 4, 6.
Defendant Hospital moves for dismissal contending that plaintiff's claim is 1) time-barred, 2) fails to state a claim under 42 U.S.C. § 1983, and 3) fails to state an Eighth Amendment claim. See Notice of Motion & Motion to Dismiss (MTD).
Legal Standard for Motion to Dismiss.
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, 127 S.Ct. 1955, 1965 (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, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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, 96 S. Ct. 1848, 1850 (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, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (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, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
1) Whether the Claim against Defendant Mercy Hospital of Folsom is Time-Barred Applicable Statute of Limitations "Actions brought pursuant to 42 U.S.C. § 1983 are governed by the state statutes
of limitations for personal injury actions." Morales v. City of Los Angeles Wilson v. Garcia, 214 F.3d 1151, 1154 (9th Cir. 2000), citing Wilson v. Garcia, 471 U.S. 261, 275, 105 S.Ct. 1938  (1985); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir.1999), cert. denied, 529 U.S. 1117, 120 S.Ct. 1979,  (2000). In California, there is a two-year statute of limitations in § 1983 cases. See Cal. Code Civ. Proc.§ 335.1; Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004)("[f]or actions under 42 U.S.C. § 1983, courts apply the forum state's statute of limitations for personal injury actions.").
"Federal courts also apply a forum state's law regarding tolling, including equitable tolling when not inconsistent with federal law. See Hardin v. Straub, 490 U.S. 536, 537-39, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th Cir.1988)." Fink v. Shedler, 192 F.3d at 914; Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (accord). Pursuant to Cal. Code Civ. Proc. § 352.1(a), a prisoner serving a term of less than life is entitled to the two-year tolling provision before the commencement of the statute of limitations for bringing a civil rights action. Fink v. Shedler, 192 F.3d 911 at 914.
Notwithstanding, the application of the forum's state law regarding the statute of limitations, including statutory and equitable tolling, in the context of a § 1983 action, it is "federal law" which "governs when a claim accrues." Fink v. Shedler, 192 F.3d at 914, citing Elliott v. City of Union City, 25 F.3d 800, 801-02 (9th Cir.1994); Cabrera v. City of Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998) ("federal law governs when a cause of action accrues and the statute of limitations begins to run in a § 1983 action."); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) ("federal, not state, law determines when a civil rights claim accrues."). "A claim accrues when the plaintiff knows, or should know, of the injury which is the basis of the cause of action." Fink , 192 F.3d at 914, citing Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996); Johnson v. State of California, 207 F.3d 650, 653 (9th Cir. 2000) (accord), overruled on other grounds, Johnson v. California, 543 U.S. 499, 125 S. Ct. 1141 (2005).
Defendant MH contends that the applicable statute of limitations for plaintiff's claim is set forth in Cal. Code Civ. Proc. § 340.5, which governs claims of professional negligence [or medical malpractice] against a health care provider and which states, in relevant part:
In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.
Citing the definition of professional negligence provided by Cal. Code Civ. Proc. § 340.5, defendant argues that plaintiff's claim against MH comes within that statute (MTD, p. 4):
(2) "Professional negligence" means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which ...