The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS and RECOMMENDATIONS
Plaintiff is a prisoner who is proceeding pro se and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. On January 4, 2013, the court dismissed defendant Weinholdt from this action, and directed that it proceed against defendants Cook and Akintola only. ECF No. 16. To date, service on defendant Cook remains outstanding. ECF No. 19.
Defendant Akintola moves for summary judgment, alleging that the claims against him are time-barred. ECF No. 20. To date, plaintiff has not filed any response to the motion. For the reasons outlined below, the undersigned recommends that the court construe the motion for summary judgment as one to dismiss under Federal Rule of Civil Procedure 12(b)(6), and, so construed, deny the motion without prejudice.
Plaintiff is a prisoner at Mule Creek State Prison. Defendant's Separate Statement of Undisputed Material Facts ("DUF") 1. On May 7, 2007, plaintiff was injured in a fight at Mule Creek, and plaintiff claims that he received multiple injuries during the fight, including injuries to his face. DUF 2.
Plaintiff claims that he was taken to a medical facility on May 7, 2007, but was refused treatment. DUF 4, 5. Plaintiff claims that he did not see a medical doctor until March 12, 2008. DUF 12.
Plaintiff exhausted his administrative remedies on April 10, 2009. DUF 14. Plaintiff filed this action on June 1, 2012. DUF 15. Defendant Akintola was served on January 23, 2013. ECF No. 17. Pursuant to the terms of the waiver signed by defendant's counsel on January 23, 2013, defendant's responsive pleading was due within 60 days of January 8, 2013, the date when the waiver was mailed. Id. To date, however, defendant Akintola has not filed an answer to the complaint, or a motion to dismiss pursuant to Federal Rule of Civil Procedure 12. Instead, on March 11, 2013, defendant moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. ECF No. 20, 21.
"Motion for Summary Judgment"
Defendant Akintola now moves for summary judgment, arguing that the action is barred by the statute of limitations. ECF No. 20 at 8. Defendant argues that the applicable statute of limitations is two years, which was tolled while plaintiff was exhausting his administrative remedies. Defendant argues that, because plaintiff completed exhaustion on April 10, 2009, his complaint should have been filed no later than April 5, 2011. Defendant claims that plaintiff's complaint is time-barred because the complaint was not filed until June 1, 2012, more than a year after the statute of limitations expired.
It is not clear to the court why defendant has chosen to neither answer the complaint pursuant to Rule 12(a) nor file a motion to dismiss the complaint under Rule 12(b), but has instead moved straight to summary judgment practice. Defendant cites no authority in support of his accelerated proceedings, and his failure to file a responsive pleading within 60 days of waiver of service violates Rule 12(a)(1)(A)(ii). The rule extends that deadline only for the motions specifically provided in Rule 12. See Rule 12(a)(4) (serving a motion "under this rule" extends the deadline for responsive pleading). However, the arguments presented by the defendant are potentially cognizable in a motion to dismiss brought pursuant to Rule 12(b)(6). See Von Saher v. Norton Simon Museum, 592 F.3d 954, 969 (2010) (complaint fails to state a claim because time-barred). Accordingly, rather than striking the motion, the undersigned recommends that the court construe it as one to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Defendant alleges that plaintiff's complaint is untimely because it was filed more than a year after the statute of limitations had expired. Actions brought pursuant to 42 U.S.C. § 1983 are governed by the forum state's statute of limitations for personal injury actions, which is two years in California. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). Included in defendant's calculations is tolling allowed while plaintiff completed the mandatory exhaustion procedure. See Brown v. Valoff, 422 F.3d 926, 942 (9th Cir. 2005).
Defendant does not address, however, the impact (if any) of California Code of Civil Procedure section 352.1(a), which tolls for two years any cause of action which accrued while a plaintiff is imprisoned on a criminal charge for a term less than life. See Carlson v. Blatt, 87 Cal. App. 4th 646, 650 (2001); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999), cert. denied, 529 U.S. 1117 (2000). Nor can the court find, either in the complaint of in the motion, any information about the length of plaintiff's sentence, so as to determine whether plaintiff qualifies for this additional tolling. If the California statute applies, then plaintiff had a four years from the accrual of his cause of action to bring suit, rather than two years.*fn1 In that case the complaint would be timely.
Because the face of the complaint does not permit determination of the facts material to the running of the statute, the question of timeliness cannot be resolved at this stage of the proceedings. See Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006) (dismissal on limitations grounds appropriate under Rule 12(b)(6) only where untimeliness is apparent from the face of the complaint); see also Orkin v. Taylor, 487 F.3d 734, 742 (9th Cir.) (affirming dismissal where ...