The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner who is proceeding without counsel and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. On September 26, 2011, plaintiff's claims against defendant Miller were dismissed based on evidence demonstrating that plaintiff failed to exhaust his administrative remedies, and that defendant Miller was entitled to summary judgment because it was factually impossible for defendant Miller to have participated in the 2009 allegations inasmuch as she retired on October 19, 2007.*fn1 (Dkt. Nos. 98, 107.) The court turns now to the motion to dismiss based on multiple grounds filed by defendant Reed, the sole remaining defendant. On July 25, 2012, plaintiff was granted an additional thirty days in which to file a supplemental opposition, or to rely on his prior opposition. (Dkt. No. 122.) Thirty days have now passed, and plaintiff has not responded in any way to the July 25, 2012 order. Accordingly, the court will address the motion to dismiss based on plaintiff's briefing filed prior to the July 25, 2012 order.*fn2 Defendant did not file a reply.
For the reasons set forth below, the court finds that defendant Reed's motion should be granted.
I. Plaintiff's Allegations as to Defendant Reed
On April 9, 2009, plaintiff was transferred back to the California Medical Facility
("CMF"). Plaintiff alleges he was returned to administrative segregation ("ad seg") on April 15, 2009, based on 2000 charges that plaintiff was being overly familiar with Medical Technical Assistant Reed. When plaintiff asked for the paperwork stating plaintiff was locked up and transferred in 2001 for being overly familiar with staff, plaintiff states he was provided "another lock-up order dated 11-25-00." (Dkt. No. 1 at 3.) When plaintiff asked for confirmation of a write-up, or a CDC-115 from defendant Reed in 2000, plaintiff allegedly received a 128-B Chrono in the mail that was not dated. Plaintiff contends this chrono was written after plaintiff arrived at CMF on April 9, 2009. Plaintiff contends defendant A. Miller was still a counselor at CMF, and alleges defendant Miller conspired with defendant Reed to have plaintiff held in ad seg. Plaintiff alleges that his central file does not contain a rules violation report ("CDC-115") for being overly familiar with defendant Reed, or a CDC 128- B supporting the CDC 114-D placement in ad seg. Plaintiff contends he was not overly familiar with defendant Reed, and that Reed violated plaintiff's Fourteenth Amendment right to due process by making a false report against plaintiff.
II. Statute of Limitations
As noted in this court's prior findings and recommendations as to defendant Miller, it appears the 2000 allegations were pled as background information. However, in the event plaintiff is attempting to litigate a 2000 claim against defendant Reed, such claim is barred by the statute of limitations.
California law determines the applicable statute of limitations in this § 1983 action. Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Until December 31, 2002, the applicable state limitations period was one year. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (citing Cal. Civ. P. Code § 340(3) (West Supp. 2002); see also Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004).*fn3 Effective January 1, 2003, the applicable California statute of limitations was extended to two years. See Jones, 393 F.3d at 927 (citing Cal. Civ. P. Code § 335.1). However, the new statute of limitations period does not apply retroactively. Maldonado, 370 F.3d at 955. California law also tolls for two years the limitations period for inmates "imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life." Cal. Civ. P. Code § 352.1.*fn4
Plaintiff declares under penalty of perjury that he "did not ever receive a write up of any kind from Reed in 2000." (Dkt. No. 120 at 1.) However, plaintiff provided a copy of an Administrative Segregation Placement Notice (CDC 114-D) that sets forth defendant Reed's allegations that plaintiff was acting overly familiar and threatening, dated November 25, 2000, and bears plaintiff's signature. (Dkt. No. 1 at 25.) The form also notes that plaintiff waived his right to 72 hours preparation time, and requested no witnesses, and the waiver was signed by plaintiff, and dated November 27, 2000. (Id.) Thus, plaintiff was aware of defendant Reed's allegations by November 25, 2000. Plaintiff's awareness occurred prior to 2003; thus, the applicable statute of limitations period is one year because plaintiff's knowledge preceded the 2003 extension of the limitations period. Maldonado, 370 F.3d at 955.
Plaintiff is entitled to tolling of the statute of limitations period for an additional two years. Jones, 393 F.3d at 927 n.5. Therefore, plaintiff was required to bring his civil rights claims on or before November 25, 2003. Under the mailbox rule, plaintiff filed the instant action on July 25, 2009. (Dkt. No. 1 at 56.) See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities).
Federal courts generally apply the forum state's law regarding equitable tolling. Fink, 192 F.3d at 914. Under California law, however, a plaintiff must meet three conditions to equitably toll a statute of limitations: (1) he must have diligently pursued his claim; (2) his situation must be the product of forces beyond his control; and (3) the defendants must not be prejudiced by the application of equitable tolling. See Hull v. Central Pathology Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1335, 34 Cal. Rptr. 2d 175 (1994).
Plaintiff argued no facts demonstrating he is entitled to equitable tolling for part or all of the lengthy delay in filing in federal court. Review of the record demonstrates plaintiff has not diligently pursued the 2000 claim. Thus, plaintiff is not entitled to equitable tolling.
Accordingly, plaintiff's 2000 claim against defendant Reed was filed outside the statute of limitations period ...