The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION TO DENY DEFENDANT UMPHENOUR'S MOTION TO DISMISS (Doc. 49.) OBJECTIONS, IF ANY, DUE IN TWENTY DAYS
Plaintiff, Louis Branch ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Now pending before the Court is defendant Umphenour's motion to dismiss this action as barred by the statute of limitations. (Doc. 49.)
I. RELEVANT PROCEDURAL HISTORY
Plaintiff filed the Complaint commencing this action on July 7, 2008. (Doc. 1.) This action now proceeds on the Second Amended Complaint, filed on August 25, 2010, against defendant Umphenour and Does 1 and 2 for failure to protect Plaintiff in violation of the Eighth Amendment, and defendant Umphenour for retaliation in violation of the First Amendment.*fn1 (Doc. 26.) On October 6, 2011, defendant Umphenour ("Defendant") filed a motion to dismiss. (Doc. 49.) On October 27, 2011, Plaintiff filed an opposition to the motion. (Doc. 55.) On November 11, 2011, Defendant filed a reply. (Doc. 57.) On November 22, 2011 and November 28, 2011, Plaintiff filed two surreplies. (Docs. 59, 62.) Defendant's motion to dismiss is now before the Court.
II. PLAINTIFF'S ALLEGATIONS
Plaintiff is currently incarcerated at Solano State Prison in Vacaville, California. The events at issue occurred at Avenal State Prison ("ASP") in Avenal, California, when Plaintiff was incarcerated there.
Plaintiff alleges that in May 2004, he was transferred to ASP. In June 2004, Plaintiff submitted a sworn declaration that he had witnessed an inmate be battered and assaulted by an ASP Officer. Defendant Umphenour confronted Plaintiff and said he "would be 'dealt with' for submitting 'a false declaration against an officer.'" (2ACP, Doc. 26 at 9.) Immediately, ASP officials caused Plaintiff to be transferred five times in two weeks "amid the calumny and obloquy that [p]laintiff was a 'snitch' and a 'baby raper.'" (Id.) Each of Plaintiff's verbal and written pleas resulted in Plaintiff being transferred to another facility or building. These transfers "virtually guaranteed" that Plaintiff's grievances would not be responded to because they would be lost, forgotten, misplaced, or not investigated due to being re-routed. (Id. at 10.) After Plaintiff was transferred to Building 250 he was stabbed four times, bludgeoned about the head, and beaten to semi-consciousness while defendants Umphenour and Does 1 and 2 watched without intervening. Plaintiff was then hospitalized and placed in segregation. Defendant Umphenour was to gather and inventory Plaintiff's personal property. In August 2004, Plaintiff was transferred to Mule Creek State Prison ("MCSP"). When Plaintiff arrived at MCSP, officials received his personal property and documented that it had been sabotaged.
Plaintiff requests monetary damages.
A. Rule 12(b)(6) Motion to Dismiss -- Legal Standard
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint," Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ," Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal at 1949 (citing Twombly, 550 U.S. at 555), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
B. Statute of Limitations - Legal Standard
Federal law determines when a claim accrues, and "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." Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008) (quoting Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999)); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). In the absence of a specific statute of limitations, federal courts should apply the forum state's statute of limitations for personal injury actions. Lukovsky, 535 F.3d at 1048; Jones v. Blanas, 393 F.3d 918, 927 (2004); Fink, 192 F.3d at 914. California's statute of limitations for personal injury actions requires that the claim be filed within 2 years. Cal. Code Civ. Proc. § 335; Jones, 393 F.3d at 927. In actions where the federal court borrows the state statute of limitation, the court should also borrow all applicable provisions for tolling the limitations period found in state ...