FINDINGS AND RECOMMENDATIONS
Plaintiff, a prisoner proceeding in pro se, filed this action under 42 U.S.C. § 1983 alleging civil rights violations. Pending before the court are the motions to dismiss filed on behalf of defendants McDonald, Roche and James on the ground that plaintiff has failed to state a claim upon which relief can be granted, and on behalf of Amero, Houghland and McBride on the ground that plaintiff failed to exhaust the available administrative remedies. For the reasons explained below, the motions must be granted.
Plaintiff's complaint asserts the following claims: (1) that defendants Calvin, Brewer, and Rath*fn1 searched his cell in retaliation for plaintiff having filed a grievance against defendant Calvin; (2) that defendant Houghland denied plaintiff a staff assistant or investigative employee*fn2 for disciplinary proceedings in violation of the Due Process Clause of the Fourteenth Amendment; (3) Amero found plaintiff guilty of a rules violation while simultaneously finding that plaintiff was the victim of retaliation in violation of Due Process Clause of the Fourteenth Amendment; (4) that defendant McDonald cancelled plaintiff's administrative appeal in violation of the Due Process Clause of the Fourteenth Amendment; (5) that McBride violated plaintiff's due process rights by falsely stating that he refused to cooperate with an administrative appeal; (6) that defendants James and Roche conspired to violate plaintiff's rights by agreeing to withhold medical authorization for plaintiff to have extra toilet paper; (7) that James was deliberately indifferent to plaintiff's serious medical needs by failing to authorize plaintiff to have extra toilet paper and by prescribing only Tylenol to treat plaintiff for pain.
The underlying dispute from which plaintiff's various claims arise is his contention that Dr. James diagnosed him with fecal incontinence, for which he required but was denied extra hygienic paper, and that his grievance in that regard was not handled properly. Complaint (hereafter, "Compl."), at 6. "Fecal incontinence" is a condition in which stool unexpectedly leaks from the rectum. Compl., at 6, & Attach. 1, at 41. This typically is caused by damaged anal sphincter muscles, loss of storage capacity in the rectum, pelvic floor dysfunction or diarrhea. Id. The records plaintiff submits with his complaint show that on June 2, 2005, Dr. James examined plaintiff for complaints of severe pain in his rectum and rectal bleeding.*fn3
Compl., Attach.2, at 62. He found that plaintiff's anatomy was normal, his stool was positive for "occult blood," and diagnosed plaintiff with "rectal pain and irritation of undetermined etiology, probably proctitis." Compl., Attach. 2, at 62. When plaintiff requested authorization for extra hygienic paper, Dr. James told plaintiff that he must talk to custody staff about it. Id. On August 26, 2005, plaintiff returned to Dr. James with complaints of rectal bleeding and fecal incontinence. Compl. Attach. 2 at 52. Dr. James performed a physical examination, determined that his anatomy and musculature was normal, no blood was present and the stool was negative for "occult blood." Id. He diagnosed plaintiff with "fecal incontinence of undetermined etiology." Id. Dr. James prescribed medication for pain and irritation and noted that plaintiff had an appointment with a specialist. Id.
On April 29, 2006, plaintiff requested that Calvin, a guard, provide plaintiff with extra hygienic paper. Compl., at ¶ 12, at 6. Calvin admitted that he knew about plaintiff's medical condition but denied the request. Id. On April 30, 2006, plaintiff filed a grievance. Compl., Attach. 1, at 9. Defendant Rath, Calvin's supervisor, investigated plaintiff's complaint by interviewing both plaintiff and defendant Calvin. Rath determined, based on the interview with Calvin, that plaintiff had six rolls in his cell. Id. Plaintiff alleges that defendant Rath promised to "fix" plaintiff's problems with Calvin. Compl., ¶12, at 7. In support of this allegation, plaintiff refers to a memorandum from the associate warden showing that Rath discussed the matter with Calvin, who admitted to having provided extra hygienic paper to plaintiff in the past. Compl., Attach. 1, at 43. However, Calvin explained that on April 29, 2006, no extra supplies were available. Id. Nothing in that document suggests that defendant Rath promised to remedy any difficulties between defendant Calvin and the plaintiff.
On July 1, 2006, Calvin again denied plaintiff extra hygienic paper, explaining that supplies were inadequate to accommodate the request. Compl., ¶ 12, at 7. Plaintiff complained to defendant Rath, who said he would "take care of it." Id. Two days later, on July 3, 2006, Rath, Calvin and Brewer*fn4 removed plaintiff and his cell-mate from the cell, searched the cell and "trashed" it. Id.; Compl., Attach. 1, at 15. When plaintiff asked why they had conducted the search, Rath stated that the search was in response to plaintiff's complaint. Id. Plaintiff filed an administrative appeal of this conduct. Id., ¶ 12, at 8. On July 6, 2006, defendant Calvin wrote a rules violation report accusing plaintiff of refusing a direct order to move away from the cell door during the July 3 search. Id., & Attach. 1, p. 29.
On July 10, 2006, plaintiff filed a grievance requesting that Roche authorize plaintiff to have extra hygienic paper because of his medical condition. Compl., ¶ 14, at 10. He alleges that Roche denied the authorization on the ground that plaintiff had not been diagnosed with fecal incontinence. Id. In support of this allegation, plaintiff relies on Roche's memorandum decision on the second level of review. Compl., Attach. 2, at 56. Roche found that medical examinations revealed that plaintiff had normal sphincter control, and that if he did not the medical department would issue disposable diapers for him. Compl., Attach. 2, at 56. Roche concluded that plaintiff did not have a diagnosis that would cause a loss of bowel control that would justify the need for an extra roll of toilet paper. Id.
On July 11, 2006, plaintiff discussed the pending rules violation report with defendant Houghland. Plaintiff explained that he did not intend to waive any procedural rights he had with respect to the disciplinary hearing. Compl., ¶ 13, at 8. Thus, plaintiff requested an "investigative employee" and a "staff assistant" pursuant to the California Code of Regulations. Id. Plaintiff alleges that Houghland "became irate" and refused to assign anyone to investigate the matter or to assist plaintiff. Compl., ¶ 13, at 9. At the hearing on the report, Amero was the senior officer. Plaintiff alleges that Amero categorized the cell search as punitive and retaliatory, and because plaintiff generally was well behaved, the rules violation report would be reduced to a "custodial counseling chrono."*fn5 Compl., ¶ 13, at 9. Plaintiff's attachments reflect no finding by Amero that the search was retaliatory or punitive. Instead, they show that Amero found plaintiff guilty of the charge, but reduced the charge because plaintiff's "disabilities and the way in which the officers were attempting to communicate, [sic] mitigates the willfulness of his actions." Compl., Attach.1, at 27. On August 30, 2006, plaintiff filed a grievance complaining that Amero did not hold a rank adequate to conduct the hearing on the rules violation report and that Amero failed to dismiss the charge after stating that the search had been punitive and retaliatory. Compl. ¶ 13, & Attach. 1, at 24-25. Plaintiff's attachments also show that on October 21, 2006, defendant McBride had a different guard make a public announcement that plaintiff must "get ready to go to program," and that when he arrived at plaintiff's cell to escort him, Davis refused to leave the cell. Compl., Attach. 1, at 36. Defendant McDonald drafted a memorandum on the second level of review finding that on October 21, 2006, plaintiff refused to be interviewed or provide any information about his complaint. Compl., Attach. 1, at 23. McDonald therefore cancelled the appeal on the ground that plaintiff failed to cooperate with the appeals process in violation of California Department of Rehabilitation and Corrections regulations.*fn6 Compl. ¶ 13, at 9 & Attach. 1, at 23. Defendants have submitted the declaration of N. Grannis stating that the California Department of Rehabilitation and Corrections has no record that plaintiff pursued the matter to the Director's Level of Review. Defs.' Mot. to Dism., Attach. 1, Decl. of Grannis, at ¶¶ 5, 7-8.
II. Standards on Motion to Dismiss
The Supreme Court has revisited the standards for a motion to dismiss under Fed. R. Civ. P. 12(b)(6) and has confirmed that to survive such a motion, the 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)." Id. 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), and the court construes the pleading in the light most favorable to plaintiff, resolving 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).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. 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).
Plaintiff claims that defendant McDonald*fn7 violated his right to due process and his First Amendment rights by canceling an administrative appeal. Compl., at 13. McDonald contends that this claim should be dismissed because there is no federally protected interest in a prison administrative appeals system. Defs.' Mot. to Dism., at 4. Plaintiff concedes that Ninth Circuit precedent forecloses any due process claim, but asserts that McDonald violated his First Amendment right to petition the government for redress. Pl.'s Opp'n, at 3-4. For the reasons explained below, plaintiff ...