FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42 U.S.C. § 1983. Pending before the court is defendants' August 27, 2007, motion to dismiss for failure to state a claim upon which relief can be granted and for failure to exhaust the available administrative remedies. As explained below, the court construes the motion seeking dismissal on the grounds that plaintiff failed to exhaust the available administrative remedies as a motion for summary judgment. For the reasons explained below, the motion must be granted.
Plaintiff's August 27, 2007, complaint alleges that defendant, M. Chirila, violated plaintiff's right to due process on March 25, 2006, while presiding over a disciplinary hearing. The complaint also alleges that defendant, G. Gonzales, retaliated against plaintiff. In particular, plaintiff claims that he was charged with battery on a peace officer for having bumped into a guard. Compl., at 5 & Ex. A, at unnumbered page 1. He asserts that he requested the presence of a witness to testify at the hearing, but Chirila ignored the request. Compl., at 5, and Ex. A, at unnumbered page 1. After the March 25, 2006, hearing, over which Chirila presided, plaintiff was found guilty. Id. The punishment was a loss of 150 days' work time credit and a 12-month term in the segregated housing unit ("SHU"). Compl., Ex. A, at unnumbered page 1. Plaintiff appealed the decision. Compl., Ex. A, at unnumbered page 2. Meanwhile, prison officials decided to transfer plaintiff to California State Prison, Corcoran to serve the SHU term. However, plaintiff's appeal was successful, and on June 14, 2006, prison officials ordered that the matter be re-heard. Compl., Ex. A, at unnumbered page 2. On that same date plaintiff was transferred to California State Prison, Corcoran in order to serve his SHU term. Compl., at 5, 7.
On June 23, 2006, Gonzales made an inventory of plaintiff's property and on July 5, 2006, Gonzales gave plaintiff some, but not all, of his property. Compl., at 5, 7. Plaintiff asserted that the property restrictions did not apply to him because his disciplinary conviction had been vacated and would be reheard and Gonzales initially agreed with him. Compl., at 7. However, Gonzales then read the disciplinary report and saw that plaintiff had been charged with battery on a peace officer. Id. At that point, Gonzales allegedly "stated with contempt in his voice that they may not make you pay but I will." Id. On August 8, 2006, someone (plaintiff does not allege that it was Gonzales) disposed of plaintiff's property in a manner that did not comply with the regulations of the California Department of Corrections and Rehabilitations ("CDCR"). Compl., at 7. Plaintiff claims that this disposal was retaliatory in nature. Id. On November 22, 2006, prison officials held a second hearing, and plaintiff again was found guilty and sentenced to serve a 12-month term in the SHU. Compl., at 5 & Ex. A, at unnumbered page 3. Plaintiff does not allege that he lost any time credit, but he served a total of 290 days in the SHU, where he was confined to an isolation cell, had fewer than 10 hours' yard time each week, was deprived of most of his personal property and was denied various privileges, such as access to a telephone and educational programs. Compl., at 5-6.
On March 6, 2007, plaintiff filed a grievance complaining about the confiscation of his property. Pl.'s Opp'n, at unnumbered p. 3. On March 13, 2007, the appeals coordinator rejected the appeal without reviewing it on the ground that the "time lapse between when the action or decision occurred and when [he] filed [his] appeal" was too great, and plaintiff had not adequately explained the delay. Id., at unnumbered page 5. The notice explained that if plaintiff wished to pursue his appeal, he "must submit an explanation and supporting documentation explaining why [he] did not or could not file" a timely appeal. Id. The notice informed plaintiff that he had 15 days to submit any explanation and documentation plaintiff might have. Id. Plaintiff has submitted a hand-written document on plain paper dated March 20, 2007, and styled, "response to first level." Compl., Ex. A, at unnumbered page 6. In it, he explained that he thought that any appeal before he received his property upon release from the SHU would have been premature. Id. Plaintiff also has submitted a copy of the grievance form on which he wrote his complaints for submission to prison officials. This form shows that on April 24, 2007, he complained about the March 13, 2007, rejection. Without stating why, he asserted that the 15-day time limit did not apply to his initial appeal. He claimed that there was no dispute about whether prison officials wrongly disposed of his property. Id.
Defendant Gonzales has submitted the declaration of Jennifer Jones, an appeals coordinator at California State Prison, Corcoran, stating that prison officials did not accept on the second level of review any appeal from plaintiff challenging the disposition of property. Id., Ex. B. He also submitted the declaration of N. Grannis to show that the CDCR has no evidence that there was any review on the third level of review the August 8, 2006, disposal of his property. Defs.' Mot. to Dism., Ex. A.
II. Standards on Motion to Dismiss
In order to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corporation v. Twombly, U.S. , 127 S.Ct. 1955, 1964, 1970 (2007) (stating that the 12(b)(6) standard that dismissal is warranted if plaintiff can prove no set of facts in support of its claims which would entitle plaintiff to relief "has been questioned, criticized, and explained away long enough," and that having "earned its retirement," it "is best forgotten as an incomplete, negative gloss on an accepted pleading standard"). Thus, the grounds must amount to "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action. Bell Atlantic, 127 S.Ct. at 1965. Instead, the "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the compliant are true (even if doubtful in fact)." Ibid. Dismissal may be based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
The complaint's factual allegations are accepted as true. Church of Scientology of California v. Flynn, 744 F.2d 694 (9th Cir. 1984). The court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include specific facts necessary to support the claim. NOW, 510 U.S. at 256 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
The court may disregard allegations contradicted by the complaint's attached exhibits. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.1998). Furthermore, the court is not required to accept as true allegations contradicted by judicially noticed facts. Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). The court may consider matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (abrogated on other grounds by Astoria Federal Savings and Loan Ass'n v. Solimino, 501 U.S. 104 (1991)). "The court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
A. Procedural Due Process
Plaintiff claims that defendant Chirila violated his due process right to a fair hearing on the charge that plaintiff committed battery on a peace officer. Defendants argue that the claim must be dismissed because the results of the hearing about which plaintiff complains were vacated and the matter was reheard. In effect, they argue that plaintiff was afforded all process due.
To state a claim for the deprivation of procedural due process, plaintiff must allege a defendant deprived him of a liberty interest, which may arise independently under the due process clause or as freedom from state deprivation or restraint imposing "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Connor, 515 U.S. 472, 483-84 (1995). A prisoner facing disciplinary measures and whose liberty interest is threatened is entitled to advance written notice of the charges, a hearing, written findings and reasons for the disciplinary action taken and, when it presents no security risk, to call witnesses and present evidence in his defense. Wolff v. McDonnell, 418 U.S. 539, 563-566 (1974). Such a hardship exists when conditions of confinement do not mirror those in other housing units, but rather "works a major disruption" in the prisoner's environment. Sandin, 515 U.S. at 486-87. Ordinarily, placement in disciplinary segregation works no such disruption. Id., at 486. "[D]isciplinary segregation, with insignificant exceptions, mirror[s] those conditions imposed on inmates in administrative segregation and protective custody." See Sandin, 515 U.S. at 486. For such placement to be "atypical and significant," there must be some extraordinary circumstance or combination of circumstances that make the confinement markedly more severe than non-punitive housing. Serrano v. Francis, 345 F.3d 1071, 1078-79 (9th Cir. 2003) (placing handicapped prisoner in disciplinary housing not equipped to accommodate his needs and holding him there for nearly two months was an "atypical and significant hardship" compared to "the ordinary incidents of prison life."). Plaintiff alleges that he was confined to his cell for nearly 24 hours a day, had fewer than 10 hours on the yard each week, and was denied privileges and access to various programs. He alleges that this placement "worked a fairly major change in" ...