ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING DEFENDANTS' UNENUMERATED RULE 12(B) MOTION, WITHOUT PREJUDICE, AND GRANTING DEFENDANTS' MOTION TO DISMISS CERTAIN CLAIMS

[ECF Nos. 26, 42, 43, 44, 47, 52]

LAWRENCE J. O'NEILL, District Judge.

Plaintiff John Catanzarite is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

On July 10, 2014, the Magistrate Judge issued Findings and Recommendations recommending that Defendants' unenumerated Rule 12(b) motion be denied without prejudice and Defendants' motion to dismiss Plaintiff's claim arising prior to September 6, 2008, be granted. The Findings and Recommendations contained notice to the parties that objections were to be filed within thirty days.

On August 6, 2014, Plaintiff filed objections to the Findings and Recommendations. Defendants filed a reply to Plaintiff's objections on August 6, 2014.

On August 29, 2014, the Magistrate Judge granted Plaintiff thirty days to re-submit a copy of his opposition to Defendants' motion to dismiss, which was never received by the Court. (ECF No. 46.) The Magistrate Judge noted that after the filing of the opposition the Court would amend, if necessary the pending Findings and Recommendations issued July 10, 2014.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff's opposition and Defendants' reply, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.

Although Plaintiff's opposition argues in detail as to the circumstances surrounding the exhaustion of the administrative remedies, the Findings and Recommendations denied, without prejudice, Defendants' unenumerated Rule 12(b) motion to dismiss based on lack of exhaustion due to intervening case law authority in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc). Thus, the determination of whether he has or has not exhausted the administrative remedies has not yet been analyzed.

As stated in the Findings and Recommendations, Plaintiff's complaint alleges isolated instances regarding review of his placement and retention in the security housing unit and challenged the particular evidence and procedures used to support such findings. (ECF No. 42, at 9.)

In opposition to Defendants' motion, Plaintiff also argues that because Defendants waited until January 30, 2012, to reveal the charges used to secure the indeterminate security housing unit term before September 13, 2008, that he complied with the statute of limitations. Plaintiff contends a confidential information disclosure form was not received by him until two days before his February 1, 2012, committee hearing. Plaintiff's argument does not have merit because Plaintiff knew or should have known of his injury, namely, his alleged improper placement and retention in the security housing unit, on the date his review placement occurred. TwoRivers v. Lewis, 174 F.3d 987, 992 (9th Cir. 2009) (statute of limitations accrues when plaintiff knows or has reason to know of the injury on which it is based.) In addition, Plaintiff was aware of this evidence before February 1, 2007, when he filed a prior lawsuit in the United States District Court for the Northern District of California challenging the committee's use of this evidence in his prior committee hearing. (See Catanzarite v. Horel, 3:07-cv-00677-WHA, ECF No. 74, at 6.) Based on the isolated nature of Plaintiff's claims, because Plaintiff did not file the instant suit until September 6, 2012, Plaintiff's claims which occurred before September 6, 2008, must be dismissed from the action.

Accordingly, IT IS HEREBY ORDERED that:

IT IS SO ORDERED.