The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER STRIKING SURREPLY (Doc. 47) FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BE GRANTED IN PART AND DENIED IN PART (Doc. 41) OBJECTIONS, IF ANY, DUE WITHIN TWENTY DAYS
Defendants' Motion to Dismiss For Failure to Exhaust Administrative Remedies
Plaintiff Shaulton J. Mitchell ("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 second amended complaint, filed July 21, 2008, against defendants Aguayo, Bustos, Martinez, Compelbel, Hernandez, Gutierrez, Aguirre, Sloss, and Masiel for excessive force, deprivation of food, failure to protect, and retaliation.*fn1 On August 14, 2009, Defendants Bustos, Martinez, Compelbel, Hernandez, Gutierrez, Aguirre, Sloss, and Masiel filed a motion to dismiss pursuant to the unenumerated portion of Rule 12(b), on the grounds that Plaintiff failed to exhaust his administrative remedies prior to filing this action. (Doc. 41, Defs.' Mot. To Dismiss.) On September 21, 2009, after receiving an extension of time, Plaintiff filed his opposition.*fn2 (Doc. 45, Pl.'s Opp'n.) On September 28, 2009, Defendants filed their reply. (Doc. 46, Reply.) The matter is deemed submitted pursuant to Local Rule 230(l).
On October 19, 2009, Plaintiff filed a reply to the Defendants' reply. (Doc. 47.) Sur-replies are generally not permitted unless required by the Court. See Local Rule 230(l). The Court did not grant Plaintiff leave to file a sur-reply. Accordingly, it is HEREBY ORDERED that Plaintiff's sur-reply, filed October 19, 2009, is STRICKEN.*fn3
II. Summary of Second Amended Complaint
Plaintiff alleges that while housed in the Security Housing Unit (SHU) at California State Prison at Corcoran (CSP-Cor), Plaintiff had a disagreement with correctional officer Mendoza regarding a cinnamon roll. Plaintiff was moved from cell 1 in A section to cell 34 in B section of the SHU. Plaintiff alleges that the toilet was not functional and informed Defendant Hernandez of this. Plaintiff alleges that he filed an inmate appeal (602) requesting that officer Mendoza and Defendant Hernandez be fired and he receive $26,000.
Plaintiff alleges that while in cell 34, he was provided with meals but was unable to eat due to the urine and feces in the toilet and the odor. Plaintiff alleges the odor caused him to vomit and produced stomach pains, headaches, hunger pains, and dizziness. Plaintiff alleges that he requested medical treatment but did not receive any. Plaintiff alleges that on April 10, 2007, Defendants Martinez and Hernandez denied his requests to be escorted for medical treatment.
Plaintiff alleges that on April 25, 2007, Defendants Hernandez and Gutierrez refused to feed Plaintiff his breakfast and lunch because he filed a 602 against Defendants Hernandez and Aguirre for forcing him to live in cell 34. Plaintiff alleges that Defendant Hernandez and Gutierrez falsely accused Plaintiff of covering his light so that they could have an excuse not to feed him. Plaintiff allegedly filed another 602 requesting that both Defendants be fired and he be compensated $26,000.
Plaintiff alleges that Defendants Hernandez, Aguirre, Compelbel, and Gutierrez retaliated against him by continuing to refuse to feed him on May 1 through May 3, 2007. Plaintiff alleges that he submitted a 602 on May 1, 2007 regarding deprivation of food. Plaintiff alleges that Defendants Bustos and Aguirre also refused to feed him on May 10, 2007. Plaintiff alleges that he filed complaints against them by informing other officers. Plaintiff alleges that Defendant Bustos stated, "Is that the one you was talking about?", Defendant Bustos demonstrated that he was participating in the retaliation against Plaintiff. Plaintiff alleges that he submitted a 602 on May 10, 2007 against Defendants Gutierrez and Bustos.
Plaintiff alleges that on May 17, 2007, Defendants Sloss and Aguayo joined in the retaliation by making derogatory statements about the plaintiff. Plaintiff requested his food from Defendants Sloss and Aguayo, but they walked away from him. Plaintiff alleges that he filed a 602 the same day against them.
Plaintiff alleges that on May 11, 2006, Defendants Hernandez and Masiel refused to feed him. Plaintiff filed a 602 against them for retaliation, requesting that they be fired, and Plaintiff be compensated $26,000. Plaintiff alleges that on September 3, 2007, Defendant Masiel retaliated against Plaintiff by threatening Plaintiff with loss of his mattress because Plaintiff had filed a 602 against Masiel.
Plaintiff alleges that on July 16, 2007, after Plaintiff informed Defendant Hernandez that there was hair in his food, Defendant Hernandez stated that if Plaintiff liked to write him up, he can write up this too. Plaintiff alleges that he submitted a 602 against Defendant Hernandez that night and was not given breakfast or lunch for the next three days as retaliation. Plaintiff alleges he stopped filing 602s because he wanted to eat.
Plaintiff alleges that Defendant Hernandez harassed him on May 30, 2007 by spitting on his breakfast. Plaintiff alleges that he filed a 602 requesting that Defendant be fired and he be compensated. Plaintiff alleges that Defendant Hernandez made derogatory statements to ...