United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendant, a physical therapist at Mule Creek State Prison, sexually assaulted him during physical therapy sessions over a six-month period. Before the court is defendant's motion to dismiss the complaint as time-barred. (ECF No. 15; see ECF No. 16.) Plaintiff has filed an opposition (ECF No. 17), and defendant has filed a reply (ECF No. 18). Having carefully considered the record and the applicable law, the undersigned will recommend that defendant's motion be granted.
I. Factual and Procedural History
Plaintiff commenced this action on December 16, 2013. (ECF No. 1.) He alleges that, at all relevant times, he was a disabled inmate housed at Mule Creek State Prison ("MCSP"). Id., ¶ 4.) Defendant was employed as a Physical Therapist at MCSP. (Id., ¶ 5.) Plaintiff alleges that "[i]n 2009-2010, on six separate occasions, " defendant sexually assaulted him during physical therapy sessions in defendant's office, while guards waited outside. (Id., ¶ 6.) Plaintiff "feared the guards and MCSP Administrative Staff would retaliate if plaintiff reported the sexual assaults." (Id., ¶ 8.) In July 2012, plaintiff heard that defendant had been fired and that two other inmates had reported being sexually assaulted by him. (Id., ¶ 9.) "So because of these learned facts... and the fact that [defendant] was gone, plaintiff felt safe enough to seek relief... in this action... [a]nd to report these above mentioned assaults[.]" (Id., ¶¶ 10-11.)
Documents attached to the complaint indicate that, after being injured in a car accident at MCSP and undergoing back surgery, plaintiff was seen by defendant in physical therapy sessions for six months, between March 27, 2009 and July 24, 2009. (Id. at 5, 15.)
Defendant submits records of plaintiff's administrative appeals concerning the alleged sexual abuse. (ECF No. 15-1.) Plaintiff filed his first appeal (No. MCSP-A-12-01557) on September 5, 2012. (Id. at 5-7.) On September 24, 2012, in a Second Level Response, the appeal was "PARTIALLY GRANTED in that: This matter has been referred to the Office of Internal affairs for a follow-up and a possible investigation.... [Y]ou will be notified upon the completion of that inquiry whether it was determined that staff did, or did not, violate policy." (Id. at 14, 17.)
On December 10, 2012, the Officer of the Inspector General issued a letter to plaintiff stating that it had conducted a review into his allegations and determined that no intervention was warranted. (ECF No. 1 at 38.) It added: "If you have not done so already, we encourage you to continue using available administrative grievance remedies." (Id.) From the log documenting Appeal No. MCSP-A-12-01557, it does not appear that plaintiff pursued his administrative appeal at the Third Level of Review. (See ECF No. 15-1 at 14.)
On February 10, 2013, plaintiff filed a tort claim with the California Victim Compensation and Government Claims Board ("Board") concerning the alleged sexual assault. (ECF No. 1 at 23-28.) On May 10, 2013, the Board wrote to plaintiff that his claim was late, as it was "presented to the Board more than six months from the date of the incident." (Id. at 33.) Plaintiff submitted an application to file a late claim, which was received on May 24, 2013. (Id. at 31.) On June 11, 2013, the Board notified plaintiff that it was reviewing his claim and late claim application and would respond in approximately three months. (Id.) On August 23, 2013, the Board denied his application to present a late claim. (Id. at 32.)
On December 9, 2013, plaintiff constructively filed the instant federal action. (Id. at 3.)
II. Legal Standard
Actions brought pursuant to 42 U.S.C. § 1983 are governed by the forum state's statute of limitations for personal injury actions. Wilson v. Garcia , 471 U.S. 261, 265 (1985); Jones v. Blanas , 393 F.3d 918, 927 (9th Cir. 2004). In California, a two-year statute of limitations applies. See Cal. Code Civ. P. § 335.1; Jones , 393 F.3d at 927. The federal court also applies the forum state's law regarding tolling, including equitable tolling when not in conflict with federal law. Hardin v. Straub , 490 U.S. 536, 537-39 (1989); Fink v. Shedler , 192 F.3d 911, 914 (9th Cir. 1999), cert. denied, 529 U.S. 1117 (2000). California provides that when a litigant is incarcerated, the applicable limitations period is tolled for two years on grounds of "disability." Cal. Code Civ. P. § 352.1(a). This tolling provision operates to delay the running of the limitations period, effectively extending the two-year personal injury limitations period to four years for inmates. See Carlson v. Blatt , 87 Cal.App.4th 646, 650, (2001) (imprisonment tolls running of limitations period for two years from accrual of cause of action); Fink , 192 F.3d at 914 (same); Ellis v. City of San Diego , 176 F.3d 1183, 1189 (9th Cir. 1999) (same). Accordingly, California inmates have a total of four years from the accrual of a cause of action to file a complaint.
The Ninth Circuit has held that prisoners are entitled to equitable tolling of the statute of limitations while completing the mandatory exhaustion process. Brown v. Valoff , 422 F.3d 926, 942-43 (9th Cir. 2005).
The parties agree that the assaults allegedly occurred between March 27, 2009 and July 24, 2009. It is undisputed that, for the nineteen days between September 5, 2012 and September 24, 2012, plaintiff was pursuing administrative remedies. Adding four years and nineteen days to the July 24, 2009 accrual date, the deadline for filing a complaint was August 12, 2013. Even construing the record to indicate that plaintiff was pursuing administrative remedies until December 10, 2012, when the Officer of the Inspector General wrote ...