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Cruz v. Tilton

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 23, 2009

BRIAN CRUZ, PLAINTIFF,
v.
JAMES E. TILTON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S SURREPLY (Doc. 44)

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. 36)

I. Order

A. Procedural History

Brian Cruz ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's first amended complaint, filed August 11, 2006, against Defendants Cobbs, Ahlin, Saunders, Carrillo, and Duvall for retaliation, against Defendants Tilton, Alameida, and Adams for failure to properly train, supervise, assign, and discipline prison staff, and against Defendants Saunders, Ahlin, and Carrillo for failing to provide for Plaintiff's security/protection.*fn1

On March 26, 2009, Defendants filed a motion to dismiss for: 1) failure to exhaust administrative remedies pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure and 2) failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 36, Defs.' Mot. to Dismiss.) On May 18, 2009, Plaintiff filed his opposition to Defendants' motion to dismiss. (Doc. 41, Pl's Opp'n to Mot. to Dismiss.) On May 29, 2009, Defendants filed a reply to Plaintiff's opposition. (Doc. 42, Defs.' Reply to Pl.'s Opp'n.)*fn2 The matter is deemed submitted. L. R. 78-230(m).

On June 22, 2009, Plaintiff filed a "Response in Support of denying 12(b) Motion." (Doc. 43.) This document appears to be a surreply, opposing Defendants' reply. On July 1, 2009, Defendants filed a motion to strike Plaintiff's surreply contending that there is no provision in the Federal Rules of Civil Procedure or the Local Rules authorizing filing a surreply to the moving party's reply. (Doc. 44, Mot. to Strike 3.) Surreplies are not generally allowed under the Local Rules of this Court. See L. R. 78-230(m). The Court neither requested nor granted permission for Plaintiff to file a surreply. Accordingly, Defendants' motion to strike Plaintiff's surreply is GRANTED and Plaintiff's surreply is HEREBY ORDERED STRICKEN.

B. Summary of Plaintiff's Amended Complaint

Plaintiff alleges that during his confinement at California Substance Abuse and Treatment Facility ("CSATF"), he was the subject of a continued pattern of retaliation by Defendants. Plaintiff alleges that Defendants Cobbs, Ahlin, Saunders, Carrillo, and Duvall retaliated against Plaintiff for filing prisoner grievances, civil lawsuits, and corresponding with public officials by (1) threatening to harm, punish, injure, and harass Plaintiff; (2) searching Plaintiff's cell excessively; (3) filing fraudulent disciplinary charges to retain Plaintiff in administrative segregation ("ad seg"); (4) instigating Plaintiff's assault by inmate Sargent; (5) fraudulently inflating Plaintiff's points to ensure retention in maximum security; (6) permitting the loss, theft, or destruction of Plaintiff's property; (7) fraudulently manipulating Plaintiff's classification; (8) failing to properly process Plaintiff's complaints; and (9) engaging in acts of intimidation against Plaintiff.

Plaintiff also alleges that Defendants Tilton, Alameida, and Adams are liable for deliberate indifference when they knowingly failed to respond to Plaintiff's requests for help by failing to properly train, supervise, assign, and discipline prison staff. Plaintiff also alleges that Defendants Saunders, Ahlin, and Carrillo failed to provide for Plaintiff's security/protection when Defendants instigated an inmate attack on Plaintiff.

C. Failure to Exhaust Administrative Remedies

1. Legal Standard

Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).

Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 127 S.Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.

The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (Deering 2009). The process is initiated by submitting a CDC Form 602. Id. § 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 86 (2006); McKinney, 311 F.3d at 1199-1201.

Plaintiff does not have to name each defendant in his grievance form. See Jones v. Bock, 549 U.S. 218-19 (2007) ("The level of detail necessary in a grievance to comply with the grievances procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion . . . .

[E]xhaustion is not per se inadequate simply because an individual later sued was not named in the grievances."). The inmate appeal form CDC-602 does not require identification of specific individuals. See Cal. Code Regs., tit. 15 § 3084.2(a).

2. Arguments

A. Retaliation and Grievance No. SATF-03-00525

Defendants contend that Plaintiff's only exhausted grievance regarding retaliation, SATF-03-00525, should be limited only to allegations of retaliation for an indeterminate SHU term. (Doc. 36-2, Mem. of P. & A. in Supp. of Mot. to Dismiss 8:1-8.) Defendants contend that Plaintiff's other claims, including: (1) placed in ad seg on September 2001, May 2002, and December 10, 2002, (2) subjected to retaliatory cell searches in October 2002, (3) forced off the inmate advisory committee ("IAC") by Defendant Carrillo, and (4) having his property stolen, should not be considered because they were not timely raised. (Mem. of P. &. A. 6-8.) Plaintiff contends that grievance No. SATF-03-00525 encompasses the time period of July 18, 2001 through May 2004 and clearly shows a pattern of retaliation and harassment. (Pl.'s Opp'n 2-3.)

An examination of grievance No. SATF-03-00525 indicates that Plaintiff submitted the grievance on January 26, 2003, and appealed it through the director's level. Plaintiff specifically alleged in his exhausted grievance a pattern of retaliation and harassment and listed three incidents that he alleges support his claims: placement in ad seg on September 3, 2001, on May 13, 2002, the most recent ad seg placement on December 11, 2002, and continued retention in ad seg for endorsement of an indeterminate SHU (Secure Housing Unit) term. However, the three prior placements were not exhausted by grievance No. SATF-03-00525.

In order to be entitled to relief regarding those three ad seg placements, Plaintiff was required to exhaust administrative remedies within the time required by prison regulation. An inmate must appeal a decision by prison officials "within 15 working days of the event or decision being appealed." Cal. Code Regs. tit. 15, § 3084.6(c). Grievance No. SATF-03-00525 was not submitted until January 26, 2003, well after Plaintiff had been placed in ad seg for the three incidents. Thus, it cannot be used to exhaust administrative remedies for the September 2001, May 2002, and December 2002 ad seg placement. These three incidents were not exhausted and thus cannot proceed as claims in this action.

Plaintiff raised other issues in grievance No. SATF-03-00525: Plaintiff being forced to resign from the IAC by Defendant Carrillo, excessive cell searches, and having his property being stolen. (Doc. 37, Exh. SATF-03-00525.) Contrary to Defendants' arguments, Plaintiff did raise these claims in his initial grievance. These claims were considered at the Director's level. Plaintiff alleges that the actions continued in the past and to date are still experienced. (Doc. 37, Exh. SATF-03-00525.) However, Plaintiff failed to exhaust these claims with grievance No. SATF-03-00525. According to Plaintiff's amended complaint, Defendant Carrillo allegedly forced Plaintiff's resignation from the IAC in April 2002. (Pl.'s Am. Compl. ¶ 41.) Plaintiff alleges that Defendants excessively searched his cell between October 3, 2001 and May 13, 2002, and again sometime before December 10, 2001. (Pl.'s Am. Compl. ¶ ¶ 40, 50.) Defendants allegedly enabled the theft of Plaintiff's property on several occasions, including July 2001 and December 2002. (Pl,'s Am. Compl. ¶¶ 30, 51.) Based on the allegations, Plaintiff did not timely grieve these other claims with grievance No. SATF-03-00525. Plaintiff submitted grievance No. SATF-03-00525 on January 26, 2003, well after those other alleged incidents occurred. Plaintiff thus has not exhausted administrative remedies as to these claims.*fn3

Accordingly, the only claim that is properly exhausted by grievance No. SATF-03-00525 is Plaintiff's allegation of a retaliatory indeterminate SHU term.

B. Other Retaliation Claims

Defendants further contend that Plaintiff has not exhausted his other retaliation claims, such as: Defendant appeals coordinator Duvall's rejections of Plaintiff's inmate grievances because of a retaliatory motive; Plaintiff being subjected to threats; officers provoking the inmate attack on Plaintiff; Plaintiff's classification points being fraudulently manipulated; and Plaintiff's complaints being improperly processed. (Mem. of P. & A. 8:23-9:7.) Defendants contend that Plaintiff failed to describe these events in any administrative grievance. (Mem. of P. & A. 9:2-3.)

Plaintiff contends in opposition that these issues were raised in other inmate grievances. (Pl.'s Opp'n 2-3.) Plaintiff contends that some inmate grievances were fully granted and thus did not need to be appealed to the director's level. (Pl.'s Opp'n 2.) Plaintiff also contends that other inmate grievances were purposefully thrown out or lost by Defendant Duvall. (Pl.'s Opp'n 3-4.) Plaintiff attaches exhibits in support of his argument. Defendants in response contend that none of Plaintiff's submitted evidence demonstrates exhaustion of administrative remedies for Plaintiff's retaliation claims. (Doc. 42, Defs.' Reply 3-4.)

In addition to grievance No. SATF-03-00525, Plaintiff submits SATF-01-03866, SATF-01-04083, SATF-01-05599, SATF-02-02905, SATF-02-03052, SATF-01-03308, SATF-01-04964, and SATF-01-04123, in support of his arguments. Plaintiff also submits various correspondence between Plaintiff and state officials. An examination of grievance No. SATF- 03-00525 indicates that Plaintiff did not describe any of those claims in his prisoner grievance. Plaintiff's other submitted grievances are addressed below.

I. SATF-01-03866

In Grievance No. SATF-01-03866, Plaintiff complained of a new 114-D (lock-up order), 72 hours to prepare for his classification hearing, a staff assistant, as well as a return to all programs prior to the lock-up. (Pl.'s Opp'n 12-15.) This does not have any relation to any of Plaintiff's claims for retaliation, failure to supervise, train, or discipline, or failure to protect, because it appears to concern alleged due process issues. Thus, SATF-01-03866 does not exhaust any of Plaintiff's claims in this action.

II. SATF-01-04083

Grievance No. SATF-01-04083 concerned Plaintiff being attack by inmate Sargent, signing get along chronos and still being retained in ad seg. (Pl.'s Opp'n 16-19.) These claims do not exhaust Plaintiff's other retaliation claims because there is no mention of retaliatory actions by any prison staff. The nature of the grievance focused on Plaintiff's alleged lack of due process. Grievance No. SATF-01-04083 does not exhaust any of Plaintiff's claims in this action.

III. SATF-01-05599, SATF-02-02905, SATF-02-03052

Grievance No. SATF-01-05599 concerned Plaintiff's issues with Lieutenant Saunders. Plaintiff requested that Defendant Saunders: cease threatening Plaintiff with placement in ad seg, not retaliate against Plaintiff for filing the grievance, and not allowed to hear the charges against Plaintiff. The grievance was partially granted. Plaintiff subsequently withdrew the grievance. (Pl.'s Opp'n 20-23.)

Grievance No. SATF-02-02905 concerned Plaintiff's placement in ad seg and subsequent lack of a timely review. Plaintiff withdrew the grievance. (Pl.'s Opp'n 24-27.)

Grievance No. SATF-02-03052 concerned Plaintiff's placement in ad seg, which was grieved in SATF-02-02905. Plaintiff filed this as an emergency appeal, which prison officials denied. Plaintiff withdrew this grievance. (Pl.'s Opp'n 28-32.)

A withdrawn inmate grievance cannot be used to demonstrate exhaustion of administrative remedies. See Rivera v. United States Postal Service, 830 F.2d 1037, 1039 (9th Cir. 1987) (finding that withdrawing appeal "is to abandon one's claim, to fail to exhaust one's remedies"). Plaintiff's contentions that the grievances were withdrawn under duress are unsupported by any evidence. Plaintiff thus cannot use grievance Nos. SATF-01-05599, SATF-02-02905, and SATF-02-03052 to show exhaustion of administrative remedies.

IV. SATF-01-03308

Grievance No. SATF-01-03308 concerned staff misplacement of Plaintiff's television set. (Pl.'s Opp'n 38-42.) This grievance is unrelated to any claims in Plaintiff's amended complaint and thus does not exhaust any of Plaintiff's claims raised in the complaint.

V. SATF-01-04123 and SATF-01-04964

Grievance No. SATF-01-04123 concerned Plaintiff's lack of adequate medication. The appeal was granted. (Pl.'s Opp'n 50-54.) Grievance No. SATF-01-04964 concerned prison officials' failure to process SATF-01-04123 as an emergency appeal, and was denied. (Pl.'s Opp'n 44-49.) Neither appeal concerns any of Plaintiff's claims raised in this action. Thus, neither appeal exhausts administrative remedies for claims in this action.

Plaintiff alleges that grievance No. SATF-01-04964 demonstrates that Defendant Duvall illegally rejected grievance No. 01-04123, and thus was engaging in retaliation actions against Plaintiff. Based on the grievance, Defendant Duvall did err in rejecting Plaintiff's grievance, but that does not in itself indicate any retaliatory action by Defendant Duvall. Thus, this grievance does not exhaust administrative remedies as to any retaliatory action by Defendant Duvall.

The letters sent to public officials outside of the grievance process do not demonstrate exhaustion of administrative remedies. Plaintiff must utilize the grievance process of the prison system and comply with its regulations in order to exhaust administrative remedies. See Jones, 549 U.S. at 218.

Having reviewed all relevant documents, exhibits, and evidence, the Court finds that Plaintiff has not exhausted administrative remedies for any of Plaintiff's retaliation claims except for the December 11, 2002 ad seg placement, excessive cell searches, removal from the IAC, and having his property stolen, which were administratively exhausted by grievance No. SATF-03-00525.

C. Failure to Protect/Safety

Defendants contend that Plaintiff did not exhaust his claim that Defendants Ahlin, Carrillo, and Saunders instigated the attack by inmate Sargent. (Mem. of P. & A. 9-10.) The only grievances concerning inmate Sargent are SATF-01-04083 and SATF-01-03866. There is no mention in either claim of staff misconduct in instigating the attack. Plaintiff did not give adequate notice to prison officials of the problems and what he wanted resolved, as required by prison regulation. Cal. Code Regs., tit. 15 § 3084.2(a). Plaintiff thus does not exhaust administrative remedies for his claim that Defendants Ahlin, Carrillo, and Saunders instigated an inmate attack.

D. Supervisory Defendants

Defendants contend that Plaintiff did not exhaust his claim against supervisory Defendants Tilton, Alameida, and Adams. (Mem. of P. & A. 9.) Defendants contend that grievance No. SATF-03-00525 does not name the supervisory Defendants and does not allege that Defendants were aware of the alleged retaliation but allowed it to continue. (Mem. of P. & A. 9.) Defendants' argument that the naming of supervisory defendants is required for proper exhaustion is incorrect as that is not required under prison regulations. Cal. Code Regs., tit. 15 § 3084.2(a); Jones, 549 U.S. at 218. However, Plaintiff does not sufficiently inform prison officials of his problems as to the supervisory Defendants. Plaintiff makes no allegations regarding any person's failure to train, supervise, or discipline prison staff for misconduct in the grievance. See Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) ("The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution.") Plaintiff did not alert prison officials as to his problems with the supervision of prison staff. Thus, Plaintiff does not exhaust his claims against Defendants Tilton, Alameida, or Adams.

Because Plaintiff has failed to exhaust his administrative remedies for his claims against Defendants Duvall, Tilton, Alameida, Adams, Carrillo, and Saunders, they are dismissed from this action without prejudice. Wyatt, 315 F.3d at 1119-20.

D. Statute of Limitations

Defendants contend that all of Plaintiff's claims occurring before July 11, 2002, four years prior to the filing of this action, are time-barred, and should be dismissed. Defendants contend this includes: (1) failure to protect claim against Defendants Ahlin, Carrillo, and Saunders (which allegedly occurred in September 2001); (2) all allegations of retaliation by Defendants Carrillo and Saunders (all of which occurred before July 11, 2002); (3) all allegations of retaliation by Defendants Ahlin, Cobbs, and Duvall occurring before July 11, 2002; and (4) all allegations of failure to train against Defendants Adams, Alameida, and Tilton arising before July 11, 2002. (Mem. of P. & A. 11-12.) Defendants contend that the continuing violations doctrine does not apply here because (1) it does not transform related discrete acts into a single unlawful practice; (2) Plaintiff has not sufficiently plead a "policy or custom"; and (3) "policy or custom" claims are not available for individual plaintiffs. (Mem. of P. & A. 12.)

Because § 1983 contains no specific statute of limitations, federal courts should borrow state statutes of limitations for personal injury actions in § 1983 suits. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Lukovsky v. City of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). Federal courts should also borrow all applicable provisions for tolling the limitations period found in state law. Wallace, 549 U.S. at 387. California's statute of limitations for an action for a personal injury caused by the wrongful or negligent act of another is two years from the date of accrual. Cal. Civ. Proc. Code § 335.1 (Deering 2009). California's statute of limitations may be tolled up to two years for a prisoner's monetary damage claims. Id. § 352.1.*fn4 Federal law determines when a cause of action accrues and the statute of limitations begins to run for a § 1983 claim. Lukovsky, 535 F.3d at 1048. A federal claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. Id. Here, the statute of limitations bars all of Plaintiff's claims which accrued prior to July 11, 2002.

In his amended complaint, Plaintiff alleges that on July 2001, Defendant Saunders placed Plaintiff in ad seg because Plaintiff had written letters and complaints. (Doc. 3, Pl.'s Am. Compl. ¶ 29.) Plaintiff alleges that on September 2001, Defendant Saunders informed Plaintiff that he would be left alone and not confined to ad seg if he would stop filing complaints; Plaintiff refused. (Doc. 3, Pl.'s Am. Compl. ¶ 32.) Plaintiff alleges that on September 3, 2001, Plaintiff was assaulted by an inmate because of Defendants Saunders, Ahlin, and Carrillo. (Pl.'s Am. Compl. ¶ 33.) Plaintiff alleges that on September 4, 2001, Defendant Carrillo committed several due process violations in retaining Plaintiff in ad seg. (Pl.'s Am. Compl. ¶ 35.) Plaintiff alleges that Defendant Adams failed to address Plaintiff's due process violations despite Plaintiff receiving a court order requiring prison officials to show cause for the ad seg detention. (Pl.'s Am. Compl. ¶ 38.) Plaintiff alleges that between October 3, 2001 and May 13, 2002, Plaintiff was harassed and antagonized by Defendant Adams's personnel, including excessive cell searches, bogus RVRs, and placement in holding cages for 4-5 hours while handcuffed. (Pl.'s Am. Compl. ¶ 40.) Plaintiff alleges that on April 2002, Defendant Carrillo suspended Plaintiff from the IAC (inmate advisory committee) and threatened further ad seg placement if Plaintiff continued to write complaints. (Pl.'s Am. Compl. ¶ 41.) Plaintiff alleges that on May 13, 2002, Defendant Ahlin told Plaintiff to stop writing to public officials or he would be locked up; Plaintiff was subsequently placed in ad seg. (Pl.'s Am. Compl. ¶ 42.) Plaintiff alleges that Defendant Ahlin continued to retain Plaintiff in ad seg until May31, 2002, when he was released from ad seg by special review. (Pl.'s Am. Compl. ¶¶ 43-45.) Plaintiff alleges that because he testified in another trial for a fellow inmate against the prison staff, Plaintiff was reissued an RVR and found guilty. (Pl.'s Am. Compl. ¶¶ 47-48.) Plaintiff alleges that Defendant Ahlin forced Plaintiff to resign from the IAC. (Pl.'s Am. Compl. ¶ 48.)

All of the above-mentioned claims accrued prior to July 11, 2002. Plaintiff would have reason to know or did know of the injuries he allegedly suffered at the time. Even if related to timely raised claims, these acts are not actionable if time-barred because they are discrete discriminatory acts. Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 828 (9th Cir. 2003) (citing Nat'l R. R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). Thus, the following claims are dismissed as time-barred by the statute of limitations: failure to protect claim against Defendants Ahlin, Carrillo, and Saunders, all allegations of retaliation by Defendants Carrillo and Saunders, and allegations of retaliation by Defendants Ahlin, Cobbs, and Duvall accruing before July 11, 2002 are all dismissed as time-barred.

Defendants further contend that Plaintiff has not plead a policy or custom that would form the basis of a continuing violation. Defendants contend that all allegations of failure to train against Defendants Adams, Alameida, and Tilton accruing before July 11, 2002 are therefore time-barred. Plaintiff does not appear to have alleged a policy or custom, but rather a claim of supervisory liability. Once Plaintiff allegedly notified Defendants Adams, Alameida, and Tilton of their subordinates' actions but they failed to act, those claims accrued. Thus, to the extent that Plaintiff's supervisory liability claims against Defendants Adams, Alameida, and Tilton accrued before July 11, 2002, they are dismissed as time-barred.

E. Failure To State A Claim Upon Which Relief May Be Granted

1. Legal Standard

"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for failure to state a claim, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The federal system is one of notice pleading. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (2002). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which apply to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002), overruled in part on other grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); see Fed. R. Civ. P. 8(a).

Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.

Discovery and summary judgment motions - not motions to dismiss - "define disputed facts" and "dispose of unmeritorious claims." Id. at 512. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001)) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'").

2. Failure to Protect/Safety

Defendants contend that Plaintiff has not sufficiently alleged a failure to protect claim against Defendants Ahlin, Carrillo, and Saunders. (Mem. of P. & A. 13-14.) Because the Court has dismissed this claim for failure to exhaust administrative remedies and as time-barred, the Court need not address Defendants' argument here.

3. Retaliation Claim Against Duvall

Defendants contend that Plaintiff has failed to state a retaliation claim against Defendant Duvall. (Mem. of P. & A. 14-16.) Because the Court dismissed the retaliation claim against Defendant Duvall for failure to exhaust administrative remedies, the Court need not decide Defendants' argument here.

4. Theft, Cell Searches, Holding Cage, and Withholding of ICC Chrono

Defendants contend that Plaintiff's claims of property theft while he was housed in ad seg, excessive cell searches, confinement in a small holding cage, and deliberate withholding of his ICC chrono should be dismissed because Plaintiff fails to link any of these claims with any Defendants. (Mem. of P. & A. 16.) Plaintiff's amended complaint makes reference to "personnel of Adams" who subjected Plaintiff to excessive cell searches, bogus RVRs, and confinement in a holding cage, from October 3, 2001 to May 13, 2002. (Pl.'s Am. Compl. ¶ 40.) Plaintiff alleges that Defendant Ahlin's retaliatory placement of Plaintiff in ad seg on December 11, 2002 enabled the theft of Plaintiff's property. (Pl.'s Am. Compl. ¶ 51.)

Plaintiff's claims regarding bogus RVRs and confinement in a holding cage fail to link any Defendants to any acts that violated Plaintiff's constitutional or federal rights. See Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) ("To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law."). Plaintiff's claim regarding the theft of his property on July 21, 2001 and December 10, 2002 were not exhausted, as stated previously. (Pl.'s Am. Compl. ¶¶ 30, 51.)

Defendants contend that Plaintiff's claim of deliberate withholding of his ICC chrono should be dismissed because Plaintiff fails to link this to any actions by Defendants. (Mem. of P. & A. 16.) Contrary to Defendants' assertions, Plaintiff named "defendants" as responsible for the deprivation of his December 19, 2002 ICC chrono, which hampered Plaintiff's ability to appeal their alleged misconduct. (Pl.'s Am. Compl. ¶ 53.) However, Plaintiff did not exhaust administrative remedies as to this claim, since there is no mention of this problem in any grievance submitted by Plaintiff. Accordingly, this claim is dismissed.

5. Claims Against Defendants Tilton and Alameida

Defendants contend that Plaintiff failed to state a claim against Defendants Tilton and Alameida. Because Plaintiff failed to exhaust administrative remedies against Defendants Tilton and Alameida, the Court need not address Defendants' argument.

II. Conclusion and Order

For the foregoing reasons, the Court HEREBY ORDERS that:

1) Defendants' motion to dismiss, filed on March 26, 2009, is GRANTED as stated herein;

2) Defendants Carrillo, Saunders, Duvall, Tilton, Alameida, and Adams are dismissed from this action without prejudice for failure to exhaust administrative remedies; and

3) This action is proceeding on Plaintiff's retaliation claim against defendants Ahlin and Cobbs for Plaintiff's indeterminate SHU term.

IT IS SO ORDERED.


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