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. On August 20, 2008, defendants Amero, Dangler, Garbutt, James, Kirk, Nielson, Smith, and Walker filed a motion to dismiss, arguing that plaintiff's second amended complaint fails to state a cognizable claim against them under the First Amendment Free Exercise Clause and that they are entitled to qualified immunity. Defendants also argue that plaintiff's state law claims should be dismissed because he has not complied with the California Tort Claims Act. Plaintiff has filed an opposition to defendants' motion, in which he requests to voluntarily dismiss defendant Garbutt.*fn1 Defendants have not filed a reply.
Plaintiff is proceeding on his second amended complaint against defendants Amero, Briddle, Dangler, Garbutt, James, Kirk, Nielson, Smith, and Walker. Therein, he alleges as follows. On or about September 21, 2002, while housed at CSP-Solano, defendant Walker began "stockpiling" rules violation reports against plaintiff for not complying with the California Department of Corrections and Rehabilitation ("CDCR") hair-length grooming regulation. Because of plaintiff's numerous rules violation reports, defendant Nielsen informed him at his disciplinary hearing that he would be transferred to a Level IV prison if he did not cut his hair. Subsequently, defendant Kirk did in fact transfer plaintiff to a Level IV prison, High Desert State Prison ("HDSP"). (Sec. Am. Compl. at 3-4 & Exs. B, C, D, H.)
After his arrival at HDSP, defendant Briddle assigned plaintiff A2B status effective July 1, 2003. However, at plaintiff's annual review on November 4, 2004, defendant Briddle improperly increased his classification status from A2B to C/C because of the numerous rules violation reports against him. Defendant Amero repeatedly denied plaintiff access to religious services. According to plaintiff, defendant Amero denied him "unlocks" on March 21, 2004, and May 2, 2004, in retaliation for his filing of an inmate appeal. (Sec. Am. Compl. at 4-6 & Exs. B, C, D, E, G, H.)
Finally, while housed at HDSP, defendant Smith informed plaintiff that he and his cellmate would be transferred to the lower D-yard. They protested the transfer because white inmates from the B-yard were being brutally stabbed and beaten on the D-yard. Nevertheless, defendant Dangler moved plaintiff and his cellmate to D-yard. In so doing, defendant Smith and Dangler violated various regulations and classification rules. On August 9, 2005, plaintiff was the victim of a battery on the D-yard and suffered injuries to his nose, eye, head, and face. Plaintiff saw defendants Garbutt and James for medical treatment, but they did not provide him with adequate medical care. (Sec. Am. Compl. at 5, 7, 9 & Exs. H, J.)
Plaintiff claims that the defendants have violated his rights under the First Amendment Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). In addition, plaintiff claims that the defendants have retaliated against him. Plaintiff also claims that the defendants have violated his rights under the Eighth Amendment by failing to protect him and for being deliberately indifferent to his medical needs. Finally, plaintiff claims that the defendants have been grossly negligent and caused him emotional distress and pain and suffering. By way of relief, plaintiff requests damages, injunctive relief, and any further relief the court deems necessary and proper. (Sec. Am. Compl. at 1-3 (Legal Claims & Prayer for Relief).)
Counsel for defendants argues that plaintiff has failed to state a cognizable First Amendment Free Exercise Clause claim against defendants Walker, Kirk, and Neilsen. Specifically, counsel notes that plaintiff has alleged that the defendants disciplined him for refusing to cut his hair even though doing so would violate his religious beliefs. However, counsel argues, the Ninth Circuit has upheld the constitutionality of CDCR's hair-length regulation against such a First Amendment challenge. (Defs.' Mot. to Dismiss at 4.)
In addition, counsel argues that the defendants are entitled to qualified immunity from plaintiff's damages claims under both the First Amendment and RLUIPA. Counsel argues that in 2002-2004, when the defendants allegedly disciplined plaintiff for refusing to cut his hair, the Ninth Circuit had not clearly established that defendants' conduct violated either the First Amendment or RLUIPA. In this regard, counsel argues that reasonable officers in defendants' positions would not have known that their alleged conduct was unlawful. (Defs.' Mot. to Dismiss at 4-6.)
Counsel also argues that plaintiff's state law claims are barred because he has not alleged that he has complied with the California Tort Claims Act ("CTCA") claims presentation requirement. Counsel for the defendants notes that under California law, before a plaintiff may bring any lawsuit alleging state tort claims, he must file a claim with the Victim Compensation and Government Claims Board ("Board"). Counsel contends that, absent facts showing compliance with that procedure, plaintiff has not pled sufficient facts with respect to an element for each of his state law claims. (Defs.' Mot. to Dismiss at 7-8.)
Finally, counsel argues that plaintiff's request for injunctive relief has been rendered moot because CDCR has since revised the grooming regulation that plaintiff challenges. (Defs.' Mot. to Dismiss at 8-9.) Counsel notes that under the revised regulation an inmate may keep his hair at any length as long as it does not cover his eyebrows, face, or pose a health and safety risk. (Id.)
II. Plaintiff's Opposition
In opposition to defendants' motion to dismiss, plaintiff argues that the defendants are not entitled to qualified immunity. Specifically, plaintiff argues that RLUIPA had been in effect for more than three years at the time of the alleged violations so all of the defendants had ample opportunity to evaluate the rules and guidelines governing conduct in this area. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 1-2.)
Plaintiff also argues that he has complied with the CTCA claims presentation requirement. In this regard, plaintiff has attached as an exhibit to his opposition a copy of his Government Claims Form upon which the Board stamped "RECEIVED" on January 19, 2006. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 3-4 & Ex.)
Finally, plaintiff agrees that his request for injunctive relief has been rendered moot since CDCR has revised the grooming regulation at issue in this action. ...