The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. On August 13, 2008, defendant Higgins filed a motion to dismiss, to which plaintiff filed an opposition and defendant thereafter filed a reply.
This action proceeds on the original complaint, filed on June 16, 2006 (6/16/06), as subsequently modified, against defendants Keith Higgins and Tevin Tiang Trong.*fn1 On 7/24/05, in A-5 Facility, defendant Higgins, claiming to have been gassed by plaintiff during tray pick-up, immediately closed plaintiff's tray slot. Complaint, p. 4. A minute later defendant Higgins re-opened the tray slot and pepper-sprayed plaintiff, after much taunting by his co-worker, defendant Tiang Trong, urging Higgins to "Spray him. Spray him." Id. Plaintiff contends that whatever may have occurred previously, there was no justification for pepper-spraying him as the situation was under control when the tray slot was closed. Id. Because plaintiff did not trust the building officers, he refused to be de-contaminated and examined when an M.T.A. (Rivera) asked him if he wanted to do so. Id.
The next day, on 7/25/05, defendant Higgins returned to feed plaintiff his breakfast, throwing the brown paper bag to the floor of plaintiff's cell and threatening to break plaintiff's neck when he came out of his cell. Complaint, pp. 4-5. Defendant Higgins failed to identify any witness on the tier to the incidents of either 7/24/05 or 7/25/05. Id., at 5. Plaintiff was moved from A-5 to B-1 Facility by a Sergeant Kukrall on 7/25/05 to separate plaintiff from defendant Higgins and other A-5 Facility officers due to the incidents above. Id.
When plaintiff was asked to move back to A-5 in October or November, plaintiff refused because he had filed a complaint about the assault and threat made by defendant Higgins on 7/24/05 and 7/25/05.*fn2 Id. In December of 2005, plaintiff was ordered back to A-5, but was returned to B-1 the next day. Id. Plaintiff was ordered back to A-5 Facility again in January of 2006. Id., at 6. Upon his return, plaintiff claims that his property was immediately separated and lost by second watch correctional officers. Id. Plaintiff explained that he needed his high blood pressure medication which was with his lost property and later that night his property was returned to him, scattered on a cart. Id. The following morning defendant Higgins fed plaintiff breakfast. Id. When plaintiff later asked defendant Higgins to see a doctor for dark blood in his urine, Higgins refused and also refused to give plaintiff his lunch. Id. Plaintiff later showed MTA Rivera the bloody urine and was told that it would be documented. Id.
When plaintiff indicated that he wanted to go out to the yard, either Higgins or another correctional officer (who had assisted Higgins) whispered in the ear of the yard officer and all the yard officers then refused to allow plaintiff out to the yard. Complaint, pp. 6-7. Later that day, January 6th, plaintiff was given his lunch, after explaining that he had been denied it to a Lieutenant Aiken who came to the building for plaintiff's 115 hearing. Id., at 7. When plaintiff asked why he had been moved back to the building where Higgins worked when plaintiff had a complaint against him for threats, assault and harassment, plaintiff was moved to A-7 and given yard. Id.
After being transferred to Tehachapi for about 20 days, plaintiff was returned on 3/13/06 to A-7 block, and about a month later, on 4/10/06, defendant Higgins moved to the same block on which plaintiff was housed. Id. Plaintiff made requests to several correctional officers, in fear for his safety, to be moved, but they refused. Id. After an encounter with Lieutenant Akins, who ordered plaintiff back to his cell, plaintiff was taken to the ground by a correctional officer claiming plaintiff was resisting. Id., at 7-8. Plaintiff was nevertheless apparently moved that day to A-6, but his property turned up in a plastic, ripped and rain-damaged bag with his legal papers and other property destroyed and medication missing, a further form of retaliation by defendant Higgins. Id., at 8. The next day, 4/11/06, plaintiff was so depressed he had to speak to the Psych Dr. Baxter, to explain how the constant harassment and moving took its toll on him mentally. Id.
Defendants move for dismissal pursuant to non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure for plaintiff's alleged failure to exhaust his administrative remedies for a claim of retaliation by defendant Higgins before bringing suit. Motion to Dismiss (MTD), pp. 1-7.
Legal Standard under Non-Enumerated Fed.R.Civ.P. 12(b)
In a motion to dismiss for failure to exhaust administrative remedies under non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure, defendants "have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The parties may go outside the pleadings, submitting affidavits or declarations under penalty of perjury, but plaintiff must be provided with notice of his opportunity to develop a record. Wyatt v. Terhune, 315 F.3d at 1120 n.14. The court provided plaintiff with such fair notice by Order, filed on 5/07/08.
Should defendants submit declarations and/or other documentation demonstrating an absence of exhaustion, making a prima facie showing, plaintiff must refute that showing. Plaintiff may rely upon statements made under the penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court's attention those parts of the complaint upon which plaintiff relies. If the court determines that plaintiff has failed to exhaust, ...