ORDER AND 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. Counsel on behalf of defendant Palmer has filed a motion to dismiss on the grounds that plaintiff failed to exhaust his available administrative remedies prior to bringing this action, plaintiff's complaint fails to state a cognizable claim for relief, and defendant Palmer is entitled to qualified immunity. Plaintiff has filed a timely opposition, and defendant has filed a timely reply.
Plaintiff is proceeding on an amended complaint solely against defendant Palmer. Therein, he alleges as follows. On April 21, 2004, defendant Palmer transferred plaintiff from Building V where he had a compatible cellmate to Building I where he had an incompatible cellmate. Several months later, defendant Palmer transferred plaintiff from Folsom State Prison to California State Prison ("CSP") - Solano. Plaintiff claims that the defendant's housing decisions were racially motivated because plaintiff is African American. Plaintiff also claims that defendant Palmer's housing decisions caused him to lose a paid kitchen job. (Am. Compl. at 8-10.)
By way of relief, plaintiff requests declaratory relief, reimbursement for his lost wages, and a transfer back to Folsom State Prison. (Am. Compl. at 11.)
DEFENDANT'S MOTION TO DISMISS
Counsel for defendant argues that this action should be dismissed because plaintiff brought suit prior to exhausting available administrative remedies. Based on the documents attached to plaintiff's complaint, counsel acknowledges that plaintiff complained in Inmate Appeal FSP 04-0789 that his transfer from Building V to Building I was racially motivated. However, counsel argues that plaintiff withdrew that administrative appeal before obtaining a director's level decision and failed to properly exhaust his administrative remedies prior to filing this action. (Def.'s Mot. to Dismiss at 4-5.)
Counsel also argues that plaintiff's equal protection claim fails because defendant's housing decisions were not racially motivated. Based on the documents attached to plaintiff's complaint, counsel contends that the defendant did not discriminate against plaintiff. With respect to plaintiff's move from Building V to Building I, counsel argues that although plaintiff claims defendant Palmer reassigned him because he is African American, plaintiff was actually replaced in Building V by an inmate who is also African American. With respect to plaintiff's transfer from Folsom State Prison to CSP-Solano, counsel contends that the California Department of Corrections and Rehabilitation ("CDCR") was restructuring and reclassifying Folsom State Prison as a Level III facility, requiring the relocating of all Level II inmates, including plaintiff. Counsel maintains that defendant Palmer did not treat plaintiff differently from other inmates with his same security classification and that he based his housing decisions on legitimate penological purposes. (Def.'s Mot. to Dismiss at 5-7.)
Finally, counsel argues that defendant Palmer is entitled to qualified immunity. In this regard, counsel contends that plaintiff has no clearly established right to remain housed in a particular building or at the institution of his choice. In addition, defendant Palmer reached his housing decisions with the understanding that transferring Level II inmates was necessary to convert Folsom State Prison to a Level III facility. In this regard, counsel contends that no reasonable person in defendant Palmer's position would have believed that his housing decisions violated plaintiff's constitutional rights. (Def.'s Mot. to Dismiss at 7-8.)
II. Plaintiff's Opposition
In opposition to defendant's motion, plaintiff argues that he exhausted his administrative remedies. Plaintiff acknowledges that he withdrew Inmate Appeal FSP 04-0789 but argues that he did so because prison officials promised to relocate him back to Building V. When prison officials reneged on their promise, he submitted the appeal to the director's level of review. Prison officials, however, returned the appeal to him with instructions to seek a decision from the second level of review. Plaintiff argues that he could not submit his appeal to the second level of review because the time to do so had expired. Plaintiff also argues that he subsequently pursued his appeal (FSP 04-0925) through the director's level of review. He contends that he reasserted his claims regarding his housing reassignments in that administrative appeal and attached a copy of his first appeal (FSP 04-0789) as an exhibit thereby clarifying that he was complaining both about his transfer to a different prison and his desire to return to Building V at Folsom. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 1-2 & Exs.)
Plaintiff also argues that the housing relocation process is race based and maintains that the number of white inmates housed in Building V is disproportionate to the total number of white inmates in the prison. Plaintiff contends that the disparity between African American and white inmates in Building V could not possibly occur by chance. Plaintiff also contends that correctional staff promote a "special preference" for white prisoners in Building V and that defendant Palmer's explanations for his housing reassignments are "pretextual." In fact, plaintiff contends the CDCR has admitted in other cases that it has used a race-based policy to make its housing decisions. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 5-7; Pl.'s Decl. at 2-4.)
Finally, plaintiff argues that defendant Palmer is not entitled to qualified immunity because his conduct violated plaintiff's clearly established constitutional rights. In addition, plaintiff contends that he is not requesting the award of money damages but seeks only back pay related to his lost kitchen job. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 7-8 & 12.)
In reply, counsel for defendant reiterates the claim that plaintiff failed to exhaust his remedies. Counsel acknowledges that plaintiff attempted to resurrect his first administrative appeal (FSP 04-0789), regarding his move from Building V to Building I, in his second appeal challenging his transfer from Folsom State Prison to CSP-Solano. However, counsel contends that plaintiff was required to exhaust the two incidents separately. (Def.'s Reply at 3-4.)*fn1
I. Legal Standards Applicable to a Motion to Dismiss Pursuant to ...