ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently outstanding are several motions filed by plaintiff seeking various forms of injunctive relief (Dckt. Nos. 5, 6, 10, 35, 44, 46, 64, 71, and 73*fn1 ), plaintiff's motion for leave to file an amended complaint (Dckt. No. 45), and two motions to dismiss filed by defendants with accompanying requests for judicial notice. Dckt. Nos. 58, 62, and 72. For the following reasons, the court grants plaintiff's request for leave to file an amended complaint. Further, the court recommends denial of plaintiff's requests for injunctive relief. Finally, the court recommends that defendants' motions to dismiss certain of plaintiff's claims be granted in part and denied in part.
I. Plaintiff's Motion for Leave to File an Amended Complaint
On June 3, 2009, plaintiff filed a "1st Motion Requesting Leave to File an Amended Complaint," Dckt. No. 45, to "add new facts and reflect just the incidents involving the '6' (six) defendants and defendant T. Felker, whom the Court granted and ordered process of service on, in this case." Under the applicable rule, "[a] party may amend its pleading once as a matter of course before being served with a responsive pleading." Fed. R. Civ. P. 15(a)(1)(A). No defendant has filed a responsive pleading, and plaintiff's motion for leave to amend is accordingly granted.
II. Plaintiff's Motions for Injunctive Relief
Plaintiff has filed numerous motions asking for various forms of injunctive relief. (Dckt. No. 5 (asking Court to order defendants to: (1) give plaintiff his property; (2) show why plaintiff is on "C" status; (3) allow plaintiff to go to canteen; (4) give plaintiff a package sent by his family; and (5) transfer plaintiff out of High Desert State Prison ("HDSP")), Dckt. No. 6 (same), Dckt. No. 10 (asking Court to "retain" plaintiff's legal property), Dckt. No. 35 (asking Court to order defendants not to "yard" plaintiff), Dckt. No. 44 (seeking transfer out of HDSP), Dckt. No. 64 (seeking appointment of counsel, return of property, and transfer out of HDSP), Dckt. No. 71 (seeking transfer out of HDSP and an order requiring defendants to respond to Docket No. 44), and Dckt. No. 73 (seeking order that plaintiff's wheelchair be returned to him and transfer out of HDSP).)
"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 374 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 2009 U.S. App. LEXIS 23887, *44 (9th Cir. 2009). In Docket Numbers 5, 6, 10, 35, 64, 71, and 73, plaintiff alleges many transgressions against him on the part of sometimes identified and sometimes unidentified HDSP staff, but he has not attempted to make a showing of likely success on the merits, favorable balance of equities, or public interest. Accordingly, the undersigned recommends denial of plaintiff's variously-styled motions for injunctive relief at Docket Numbers 5, 6, 10, 35, 64, 71, and 73.
In his renewed motion for a temporary restraining order (Docket No. 44; the first motion for a TRO was denied without prejudice pending resolution of some service issues), plaintiff alleges that he is "subjected to retaliation of 'all' forms from H.D.S.P. officials 'continually,' which causes plaintiff's life, safety and security to be in severe danger from both staff and inmate population here at H.D.S.P." He seeks a preliminary injunction ordering all defendants, "their successors in office, agents and employees and all other persons acting in concern [sic] and participation with them" to transfer plaintiff out of HDSP to a prison of his choice. In support of his motion, plaintiff submits his own declaration and affidavits from fellow inmates H. Scott and Stephone Brown.
Plaintiff declares that on December 8, 2007, he was extracted from his cell "out of retaliation and racism" by "HDSP officials" and placed in the yard where he is subjected to ongoing retaliation by HDSP officials who are trying to kill him. Plaintiff provides no specific facts about why he believes these acts are retaliatory or discriminatory or what conduct occurs on the yard that plaintiff believes is designed to kill him. Plaintiff further declares that prison staff are retaliating against him by not allowing his family and friends to visit him. Finally, according to plaintiff, on February 14, 2007, prison officials tried to kill him, threatened him to keep quiet about the assault, and then "assaulted plaintiff sexually and physically by way of illegal strip search." Plaintiff again provides no details about how prison officials attempted to kill him.
In an affidavit, H. Scott states that, on November 29, 2007, he heard defendants Betti and Brautingham harassing plaintiff about an administrative appeal he had filed to obtain his legal documents. According to Mr. Scott, Betti and Brautinghamtold plaintiff "he wasn't getting shit and fuck his legal property." Then Brautingham said, "We came in their [sic] once and fucked you up Jones we'll do it again." Betti said, "You better hope I don't catch any of your family in parking lot or garage," and then one of the two defendants said, "I'm not reading shit to you dum [sic] ass." Stephone Brown's affidavit provides the same account, clarifying that one of the defendants pushed plaintiff's administrative appeal under his door while stating, "I know I'm suppose [sic] to read it to your dum [sic] ass but I'm not reading shit to you."
Even if the court were to assume the truth of the facts attested to in plaintiff's declaration and the Scott and Brown affidavits, plaintiff has not established that he is likely to succeed on the merits of his action. On this point, plaintiff merely conclusorily argues that he "has a great likelihood of success on the merits. What defendants and other prison officials at HDSP have done and condoned. And still continue to subject plaintiff to, 'continual retaliation of "all" forms.'" Plaintiff has not attempted to make any preliminary showing with regard to the elements of his claims or present any argument to persuade the Court that he is likely to establish those elements at summary judgment or trial. As plaintiff has failed to show that he is likely to succeed on the merits of his claims, he is not entitled to a TRO or preliminary injunction and the court need not consider whether he has made the requisite showings of irreparable harm, favorable balance of the equities, or public interest. Accordingly, the undersigned recommends denial of plaintiff's "Motion of Renewal of TRO/Preliminary Injunction," Dckt. No. 44. Plaintiff's "Motion Requesting the Court to Shorting [sic] Time on Setting Hearing for TRO/Preliminary Injunction Renewed," Dckt. No. 46, should be denied as moot.
IV. Defendants' Motions to Dismiss
On August 10, 2009, defendants Betti, Brautingham, Cunningham, Hunter, and Callison moved to dismiss plaintiff's complaint, arguing that (1) plaintiff failed to exhaust his administrative remedies against defendant Betti, (2) plaintiff failed to amend his complaint to state a federal cause of action against Betti with regard to the events of September 15, 2007 after the initial claim was dismissed, (3) plaintiff failed to comply with California's government tort claims statutes by presenting his state law tort claims to the California Victim Compensation and Government Claims Board ("the Board"), and (4) plaintiff's due process claim against defendant Callison is not legally viable. Dckt. No. 58. On October 23, 2009, defendant Lebeck moved to dismiss the claims against him for assault and battery and violation of the Eighth Amendment, arguing that plaintiff failed to exhaust his administrative remedies and failed to present the state law tort claims to the Board. Dckt. No. 72.
A. Exhaustion of Federal Claims Against Defendants Betti and Lebeck
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). This requirement is mandatory and unequivocal. Booth v. Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) ("Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to suit." (citation omitted)). A prisoner seeking leave to proceed in forma pauperis in an action challenging the conditions of his confinement brings an action for purposes of 42 U.S.C. § 1997e when he submits his complaint to the court. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Therefore, a prisoner must exhaust available administrative remedies before filing any papers in federal court and is not entitled to a stay of judicial proceedings in order to exhaust. Id. at 1051; McKinney, 311 F.3d 1198.
1. Standards Applicable to Motions to Dismiss for Failure to Exhaust
The failure to exhaust non-judicial administrative remedies as required by § 1997e(a) is not jurisdictional. Wyatt v. Terhune, 315 F.3d 1108, 1117 n.9 (9th Cir. 2003). Nor does § 1997e(a) require a plaintiff to plead exhaustion. Id. at 1119. Rather, "§ 1997e(a) creates a defense -- defendants have the burden of raising and proving the absence of exhaustion." Id. The Ninth Circuit determined in Wyatt that because the defense of failure to exhaust "is not on the merits" and summary judgment "is on the merits," the defense should be treated as a matter in abatement*fn2 to be resolved pursuant to a motion made under "unenumerated Rule 12(b)." Id. The court stated that "[i]n deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20.
In Jones v. Bock, 549 U.S. 199, 216 (2007), the U.S. Supreme Court held that failure to exhaust under the PLRA is an affirmative defense. It clarified that if the affirmative defense can be decided on the pleadings alone, a motion under Rule 12(b)(6) is appropriate. Id. at 215. The Court analogized to a motion to dismiss based on a statute limitations defense and stated:
A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract.
Thus, where the complaint itself demonstrate the absence of exhaustion, under Jones the issue may be resolved under Rule 12(b)(6). But, where an affirmative defense is raised that requires the presentation of evidence outside the pleadings (which includes the defense of failure to exhaust as required by 42 U.S.C. § 1997e(a)) the issue must be addressed under standards that utilized the procedural safeguards of Rule 56, so that disputed material factual issues and the credibility of conflicting witnesses are resolved through live testimony and not on paper.*fn3 Fed. R. Civ. P. 12(d) (where a party presents affidavits or other matters outside the pleadings in support of its motion, the court must treat the motion "as one for summary judgment under Rule 56"), 56(b); Panero v. City of North Las Vegas, 432 F.3d 949, 952 (9th Cir. 2005).*fn4 Jones made clear that, "beyond the departures specified by the ...