FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On February 8, 2008, defendants Berry and Flores moved to dismiss this action, arguing that plaintiff failed to exhaust available administrative remedies prior to bringing suit and that plaintiff's complaint fails to state a cognizable claim. Plaintiff has filed an opposition to defendants' motion. Defendants have filed a reply.
In his complaint, plaintiff alleges that on November 14, 2004, he sent a letter to the California Department of Corrections Office of Internal Affairs claiming that defendant Berry had made unwanted sexual advances towards him. Plaintiff alleges that, in retaliation for writing this letter, on November 18, 2004, defendant Berry attempted to incite a group of inmates to inflict violence upon him. In addition, plaintiff alleges that on the following day, defendant Berry called him into his office and told him that he was going to be unassigned from his culinary job. Plaintiff alleges that, on November 30, 2004, he was in fact unassigned from his culinary job. Plaintiff claims that he received a chrono from defendant Flores stating that he had been unassigned from his job because of a pending disciplinary infraction authored by defendant Berry. Plaintiff contends that the information in the chrono was false because at the time it had been generated there were no pending disciplinary infractions pending against him.
Counsel for defendants argues that this action should be dismissed because plaintiff did not exhaust his administrative remedies with respect to his claims against defendants Berry and Flores. (Defs.' Mot. to Dismiss at 3-7.) Specifically, counsel argues that plaintiff did not file an administrative appeal regarding any alleged retaliation, so that his claim in this action that the defendants conspired to unassign him from his kitchen job in retaliation for exercising his First Amendment rights is barred. (Id. at 6-7; Grannis Decl. at 3-4; Cervantes Decl. at 3-4.) Defense counsel argues that to the extent any of plaintiff's administrative appeals relate to a retaliation claim, plaintiff failed to pursue them through the director's level of review or prison officials "screened them out" for lack of documentation. (Id. at 7; Grannis Decl. at 3-4; Cervantes Decl. at 3-4.)
Defendants also argue that plaintiff's complaint fails to state a claim. (Defs.' Mot. to Dismiss at 3-7.) Defense counsel has not, however, directly addressed the viability of plaintiff's retaliation claim, which -- as plaintiff clarifies in his opposition -- is the sole claim presented in this action.*fn1
II. Plaintiff's Opposition
Plaintiff has filed an opposition to defendants' motion to dismiss clarifying that he only seeks redress for retaliation. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 1.) Specifically, plaintiff argues that "his First Amendment Right to seek redress was violated when he was retaliated against by defendants after filing a sexual harassment complaint with Internal Affairs against C/O Berry." (Id. at 1-2.) Plaintiff notes that all other references in his complaint are to facts and do not constitute additional claims for relief. (Id.)
Plaintiff argues that he has exhausted his administrative remedies prior to filing suit. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 2.) In particular, he claims that in Appeal 05-00143, he clearly stated that the defendants issued him a rules violation report and unassigned him from his job in retaliation for his filing of a sexual harassment complaint. Plaintiff notes that he pursued that appeal through the highest level possible. He also claims that, in Appeal 05-00081, he clearly alleged that defendants' actions were retaliatory in nature and were taken in response to his filing a sexual harassment complaint against defendant Berry. Plaintiff notes that prison officials rejected this second appeal for lack of documentation. However, plaintiff declares that the rejection was erroneous because he attached his CDC-128-B chrono to the appeal. (Id.)
Plaintiff asks the court to consider that the events in this case did not occur as a single event, but rather transpired over a period of time. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 2.) Plaintiff concludes that defendants' motion to dismiss should be denied.
In reply, counsel for defendants reiterates that plaintiff failed to exhaust his retaliation claim in Appeals 05-00711, 04-03690, and 05-00143. (Defs.' Reply at 4-5.) In addition, counsel argues that plaintiff's allegations in Appeal 05-00081 reference only removal from his kitchen job and have nothing to do with alleged retaliation. (Id. at 2.) Moreover, defense counsel argues that at the director's level of review plaintiff's Appeal 05-00081 was "screened out" due to lack of required documentation. While acknowledging that plaintiff claims that he submitted the appeal with the required documentation, counsel for defendants maintains that none of plaintiff's exhibits support his contention or indicate that he took any steps whatsoever to pursue the appeal after it was "screened out" at the director's level. Defense counsel relies heavily on the unpublished decision in Smith v. Woodford, No. C 05-3373 SI (pr), 2007 WL 2122648 (N.D. Cal. July 23, 2007). In that case at the director's level of review an inmate's appeal was screened out for failure to attach a necessary document. Although the prisoner argued in opposition to a motion to dismiss his complaint in district court that he had resubmitted the appeal with the necessary documentation, and provided a declaration to that effect, the district court granted the defendants' motion to dismiss noting:
The court credits defendants' evidence over Smith's evidence. Smith's declaration does not have attached to it a copy of any document that would support his assertion, such as a copy of his resubmitted appeal or a mail log showing that he mailed the grievance on the day he says he mailed it. And he provided no evidence that he made any further ...