The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER (1) DENYING MOTION TO DISMISS FOR FAILURE TO EXHAUST AND (2) GRANTING WITH PARTIAL LEAVE TO AMEND MOTION TO DISMISS BY DEFENDANTS RYAN AND ALVAREZ
On February 1, 2007, Bruce Thorns ("Plaintiff"), proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 against the warden and numerous correctional officers at Calipatria State Prison, the institution where Plaintiff was confined at the time of the events giving rise to Plaintiff's complaint in this case. (Doc. No. 1.) Currently before the Court are two separate motions to dismiss.
On July 3, 2007, all defendants filed a motion to dismiss Plaintiff's complaint on the ground that Plaintiff failed to exhaust administrative remedies. (Doc. No. 32.) Plaintiff filed a response in opposition, Doc. No. 45, and Defendants filed a reply on September 24, 2007. (Doc. No. 52.)
The second motion to dismiss Plaintiff's complaint was filed on September 21, 2007 by defendants Ryan and Alvarez. (Doc. No. 51.) In addition to joining the previous motion to dismiss for failure to exhaust, Ryan and Alvarez seek dismissal of Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff filed a response in opposition on November 9, 2007. (Doc. No. 55.) Defendants Ryan and Alvarez have not filed a reply. On January 16, 2008, Plaintiff notified the Court of his "willingness for the motions to be heard without oral argument." (Doc. No. 57.) The Court exercises its discretion pursuant to Local Civil Rule 7.1(d)(1) to decide this matter on the papers. For the following reasons, the Court (1) denies the motion to dismiss for failure to exhaust and (2) grants the motion to dismiss by defendants Ryan and Alvarez. The Court grants Plaintiff leave to amend the complaint with respect to defendant Ryan.
The complaint alleges that prison officials used excessive force on Plaintiff during an October 13, 2004 altercation between prisoners and correctional officers at Calipatria State Prison. (Compl. at 22-24.)*fn1 Plaintiff's complaint further alleges that prison officials conspired to cover up the alleged use of excessive force. (See id. at 25-26.)
Following the incident on October 13, 2004, defendant Rivas submitted a rule violation report stating that Rivas observed Plaintiff attacking Officer Neal during the October 13, 2004 incident between inmates and correctional officers. (Id.; see Mem. Pts. & Auths. ISO Plf's. Opp. to Defs.' Mot. Dismiss ("Plf's. Oppo."), Doc. No. 55-2, at 15.) Plaintiff disputed Rivas's account. On December 25, 2004, Plaintiff appeared before a Senior Hearing Officer ("SHO") for adjudication of the rules violation report. (Id.) Prior to the hearing Plaintiff was afforded an opportunity to question Officer Neal, who indicated that Plaintiff did not attack him. (See id. at 17.) At the hearing, the SHO found Plaintiff guilty of battery on a peace officer and imposed a term of confinement in administrative segregation. (Id. at 18.)
Plaintiff appealed the SHO's decision and his punishment. (Id. at 21.) On April 5, 2005, the Chief Deputy Warden granted Plaintiff's appeal at the second level, on the ground that due process was not afforded to Plaintiff. (See Plf's. Opp. at 21-29.)
With respect to his allegations of excessive force and a cover-up, Plaintiff asserts that he filed two "Form 602" grievances which the appeals office never processed. (See Doc. No. 45-3, Decl. of Bruce Thorns ISO Plf's. Oppo. to Defs.' Mot. Dismiss ("Plf's. Decl.") ¶¶ 3, 4.) On January 17, 2005, Plaintiff sent a letter with another Form 602 to the Warden asking him to answer the appeal because the appeals office had failed to do so. (Id. ¶ 4; see id., Ex. A.) On November 10, 2005, Plaintiff's appeal was denied at the second level of review. (Plf's. Decl. ¶ 5.) Shortly thereafter, on November 22, 2005, Plaintiff was transferred to a new facility. Plaintiff asserts that despite several attempts to obtain a copy, several months elapsed before he received the denial of his second level appeal. (Id. ¶¶ 5, 6, 17; see id., Exs. B, C.) Plaintiff submitted a copy of a statement filed by defendant Rivas, in which Rivas recounts his own unsuccessful attempts to obtain a copy on Plaintiff's behalf. (See Plf's. Decl., Ex. D.) Plaintiff asserts that he received the second level response on June 29, 2006. (Plf's. Decl. ¶¶ 10-11; see id., Exs. F, G.)
On July 2, 2006, Plaintiff submitted the appeal to the third level of review with a letter explaining why it was late. (Id. ¶ 11, Ex. G.) The appeal was screened out as untimely and returned to Plaintiff on August 27, 2006. Plaintiff resubmitted the appeal and, on October 30, 2006, it again was returned to him as untimely. (Id. ¶ 12; see also Doc. No. 32-2, Decl. of N. Grannis ISO Defs.' Motion to Dismiss Compl. ¶ 8.)
I. Motion to Dismiss - Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal of a claim either where that claim lacks a cognizable legal theory, or where insufficient facts are alleged to support plaintiff's theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In resolving a Rule 12(b)(6) motion, the court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337--38 (9th Cir. 1996). However, to survive a Rule 12(b)(6) motion a complaint must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). A plaintiff's obligation under Rule 8(a)(2) "to provide the grounds of his entitlement to relief requires more than labels and conclusions . . . ." Id. In a civil rights action under § 1983 where the plaintiff is proceeding pro se, courts liberally construe the complaint. Karim-Panahi v. Los ...