The opinion of the court was delivered by: William Alsup United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS; DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION; DIRECTING PLAINTIFF TO SERVE DEFENDANTS BOLIN AND THOMPSON (Docket Nos. 13 & 23)
Plaintiff, a California prisoner proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. 1983, alleging inter alia that Defendants Hedgpeth, Bolin, Thompson, Blackstone, Vargas, and Ostrander, officers and employees of Kern Valley State Prison, retaliated against Plaintiff for his exercise of his First Amendment rights.*fn1
Defendants have moved to dismiss the action under the unenumerated portion of Federal Rule of Civil Procedure 12(b) and under Rule 12(b)(6). For the reasons stated herein, Defendants' motion to dismiss is GRANTED in part and DENIED in part.
Plaintiff's request for a preliminary injunction is DENIED. Plaintiff is DIRECTED to properly execute summons on Defendants Bolin and Thompson.
Plaintiff alleges that at Kern Valley State Prison ("KVSP") on and around June 4th and June 16th of 2007, Defendants retaliated against Plaintiff for exercising his First Amendment rights. Plaintiff filed two prison grievances related to these claims. As to the events of June 4th, the prison's written decision on Plaintiff's administrative grievance provides a useful summary of Plaintiff's allegations:
It is [Plaintiff]'s position that on June 4, 2007, Kern Valley State Prison (KVSP) Third Watch Correctional Officer (CO) J. Bolin, who is assigned to Building 4, served [Plaintiff] an evening meal tray that did not contain the peanut butter protein supplement that is customarily given to [Plaintiff] to replace the meat that [Plaintiff] does not eat. On June 5, 2007, CO Bolin served [Plaintiff]'s evening meal tray with cheese as a protein replacement. It is contended that [Plaintiff] alerted CO Bolin that [Plaintiff] does not eat cheese due to dairy products causing allergic reactions to him. CO Bolin informed [Plaintiff] that be would bring him a peanut butter packet later. [Plaintiff] claims that later that evening, he asked CO Bolin about the peanut butter that the officer did not bring him. CO Bolin stated that he was not going to bring [Plaintiff] anything and also stated, "We have had enough of you, nigger. You and your 602's and lawsuits and we are going to get you." [Plaintiff] also claims this action took place at approximately 2110 hours, when CO Bolin came to collect the mail. On June 6, 2007, Second Watch CO A. Thompson served [Plaintiff] a breakfast tray with cheese on it. On April 9, 2007, [Plaintiff] wrote a complaint involving CO Blackstone's refusal to supplement [Plaintiff]'s meal with peanut butter and her insistence on giving [Plaintiff] cheese or tuna, which she is aware that [Plaintiff] does not eat. [Plaintiff] requests that Warden A. Hedgpeth halt the racial threats and retaliatory acts of his subordinates against [Plaintiff].
(Defs.' Mot. to Dismiss ("MTD"), Decl. of Rachel Munoz, Ex. A at 6.)
With regard to the events of June 16th, the prison's written decision on Plaintiff's administrative grievance provides a useful summary of Plaintiff's allegations:
It is the [Plaintiff]'s position that on June 16, 2007, during the Third Watch, a Kern Valley State Prison (KVSP) Correctional Officer appeared at [Plaintiff]'s cell door and announced that boxer shorts and shower shoes are to be worn outside of the cell for the purpose of a cell search. [Plaintiff] states that he was still eating his dinner meal, when the two officers approached his door for the search. [Plaintiff] claims he was complying with one of the officer's strip search instructions, when this particular officer called [Plaintiff] an "Idiot[,]" as [Plaintiff] was trying to finish chewing some food to allow the officer to look into [Plaintiff]'s mouth. It is contended that [Plaintiff] asked the officer for his name but the officer refused to identify himself but after several more times asking, the officer said his name was Vargas. [Plaintiff] also claims that this officer also elbowed [Plaintiff] as [Plaintiff] passed by the officer. Upon returning to his cell, [Plaintiff] noted that the cell was in shambles and his property was strewn about the cell, with several items taken or thrown away, including [Plaintiff]'s prescribed medication of Metamucil. [Plaintiff] requests that Warden A. Hedgpeth call off the verbal disrespect and retaliatory acts of his subordinates against [Plaintiff]. (Id., Ex. B at 9.)
Based on these asserted facts, Plaintiff alleges that all Defendants violated his (1) First Amendment rights by retaliating against him; (2) Eighth Amendment right to be free from cruel and unusual punishment; and (3) Fourteenth Amendment right to be free from racial discrimination.
I. Defendants Ostrander and Hedgpeth
Defendants contend that Plaintiff's claims against Defendants Ostrander and Hedgpeth should be dismissed because Plaintiff failed to exhaust his administrative remedies for these claims. (MTD at 7.) Ostrander was in charge of the Institutional Gang Investigations/Investigative Services Unit at the time of the alleged incidents. Hedgpeth was the warden of KVSP at this same time.
As detailed above, Plaintiff filed two prison grievances related to the claims he raises in the instant action. In these grievances, Plaintiff mentions only that Ostrander is Vargas's supervisor, and details no invidious actions Ostrander may have taken. Also, Plaintiff does not detail in these grievances that or how Hedgpeth violated Plaintiff's rights or otherwise caused Plaintiff injury. Rather, in those grievances Plaintiff appeals to Hedgpeth for relief, rather than accusing him of misdeeds.
"No 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 ...