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September 6, 2005.

CALVIN DWAYNE HOLT, CDC #J-66891 Plaintiff,
ROBERT J. HERNANDEZ, et al.; Defendants.

The opinion of the court was delivered by: JAMES STIVEN, Magistrate Judge

This Report and Recommendation is submitted to United States District Court Judge M. James Lorenz pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.3 of the United States District Court for the Southern District of California.

I. Procedural Background

  On September 22, 2004, Plaintiff Calvin Dwayne Holt, an inmate currently incarcerated at California Medical Facility (CMF), filed a Complaint against Defendants Warden Robert J. Hernandez, Associate Warden Brenda Early, Associate Warden of Business Services Octavio Peraza, and Facility 1 Laundry Personnel Chris Howerton pursuant to 42 U.S.C. § 1983. The Complaint alleges three causes of action, each stating a violation of Plaintiff's Eighth Amendment right to freedom from cruel and unusual punishment, and Fourteenth Amendment rights to due process and equal protection of the law. Plaintiff alleges these violations occurred when Defendants regularly failed to provide inmates with clean bed linens, creating unsanitary conditions, and when prison administration subsequently failed to respond to Plaintiff's administrative appeal at the second formal level.

  On March 29, 2005, Defendants filed a motion to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b). The motion was brought on grounds that Plaintiff failed to allege and exhaust all administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e.

  II. Factual Background

  On May 19, 2004, Plaintiff Calvin Dwayne Holt, a California state prisoner who was incarcerated at the R.J. Donovan Correctional Facility ("Donovan") in San Diego at the time of the alleged violations, claims he submitted a CDC Form 602 appeal to prison staff due to the prison's failure to regularly distribute bed linens to the inmates. Plaintiff requested compensatory and punitive damages, each in the amount of $5,000, and implementation of procedures upholding the inmates' rights to exchange their sheets weekly. Compl., Attach. 1 at 1. An informal level staff response was issued on May 28, 2004, stating that sheets were exchanged on a weekly basis and new sheets would be distributed once they arrived at the institution. Id. On May 29, 2004, Plaintiff filed his first formal level appeal seeking the same relief initially requested in his informal appeal.

  On July 6, 2004, the institution partially granted Plaintiff's appeal, stating that the Facility 1 clothing supervisor would continue to monitor clothing and linen needs. However, the institution stated that Plaintiff's allegations of staff misconduct, and his request for compensatory, and punitive damages had not been substantiated. Compl., Attach. 1 at 5. Plaintiff took his appeal to the second formal level on July 15, 2004, and amended it to include the defendants named in this complaint as persons Plaintiff believed to be responsible for the alleged constitutional violations. Compl., Attach. 1 at 2,6. On August 20, 2004, Plaintiff notified the Facility 1 Appeals Coordinator that he had not received a second level response to his appeal which was six days overdue. Plaintiff demanded a response to said appeal, or he would view his attempts at resolving the issue as "FUTILE", and initiate federal court proceedings. Compl., Ex. B, 2. On August 28, 2004, the institution responded to this notification, and stated that a response had been due by August 24 and an overdue notice would be sent. Compl., Ex B 1. Neither Plaintiff nor Defendants have provided a copy of any second level response.

  On September 22, 2004, Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983. Judge Lorenz granted Plaintiff's motion to proceed in forma pauperis. The Court simultaneously screened the Complaint in order to make a preliminary determination as to whether the Complaint required sua sponte dismissal on grounds that it was frivolous, malicious, failed to state a claim, or sought monetary damages against defendants who were immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 4433, 446 (9th Cir. 2000) (§ 1915A). Finding sua sponte dismissal inappropriate, Judge Lorenz instead directed the U.S. Marshal to effect service on Plaintiff's behalf on December 28, 2004. Defendants filed a waiver of service of summons on January 11, 2005 which required Defendants to file an Answer or a motion pursuant to Rule 12 no later than March 11, 2005.

  On March 28, 2005, Plaintiff filed a motion for default judgment for failure by Defendants to plead or otherwise defend against Plaintiff's Complaint. Pls.' Mot. for Default J. at 1. The Court denied Plaintiff's motion on April 11, 2005, because Defendants had filed a motion to dismiss on March 29, 2005, shortly after the time Plaintiff's request for entry of default was filed with the Court. Defendants claim Plaintiff failed to exhaust all administrative remedies required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e, before filing in federal court. Dfs.' Mot. to Dismiss at 1. Along with this motion, Defendants filed the declaration of A.L. Cota, the appeals coordinator at R.J. Donovan Correctional Facility, which alleges that there is no record indicating Plaintiff sought further review to the Director's level, the final level of appeal. Cota Decl., ¶ 4. However, the declaration of A.L. Cota also confirms Plaintiff filed a second level appeal and while the prison's computer record shows that a second level response was issued and "may have been granted;" however, "the terms and extent" of the response are "unknown because the second level decision could not be found despite diligent search." Id.

  On April 27, 2005, Plaintiff filed his opposition to Defendants' motion to dismiss. Plaintiff argues that he attempted to exhaust his administrative remedies before filing suit, but was obstructed from doing so by prison personnel. Pls.' Mem. P. & A. for Opp'n to Defs.' Mot. to Dismiss at 1. Plaintiff further alleges the Deputy Attorney General committed an impropriety because the Deputy submitted an "altered" page to the original 602 Appeal. Id. at 2. Defendants filed a reply to Plaintiff's opposition on May 9, 2005. Defendants claim that they failed to attach a "`D' Section Continuance" because Plaintiff is the only person in possession of that document. Defendants further claim that Plaintiff's allegation that Defendants submitted an "altered" continuance page to his appeal is meritless and irrelevant. Defs.' Mem. P. & A. for Reply to Pls.' Opp'n to Mot. to Dismiss at 1-2.

  III. Defendants' Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P.12(b)

  Defendants move to dismiss Plaintiff's Complaint for failing to exhaust available administrative remedies pursuant to FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a).

  A. Discussion

  1. Standard of Review per FED.R.CIV.P. 12(b) and 42 ...

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