The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action was reassigned to the undersigned on February 9, 2010.*fn1
Plaintiff is proceeding on an amended complaint, filed November 26, 2008 (Dkt. No. 20), against individual defendants employed at California State Prison-Sacramento ("CSPS" or "CSP-S"), and the Office of Internal Affairs (Northern Region) ("OIA") of the California Department of Corrections and Rehabilitation ("CDCR").*fn2 Plaintiff filed his complaint and amended complaint while incarcerated at CSPS; plaintiff is presently incarcerated at California Correctional Institution, Tehachapi.
Presently pending before the court are the following matters: (1) motion to dismiss filed by defendants Garcia, Tenseth, Wachter, Marrow, Jaffe, Kelly, Martin, Stabbe, Williams, Chapman, Hill, Vance, Shannon, Joseph, and Gold (Dkt. No. 35), joined by defendant Brockett (Dkt. No. 53); (2) motion to dismiss filed by defendant Brockett (Dkt. No. 53); (3) plaintiff's motions for sanctions (Dkt. Nos. 44, 77); (4) plaintiff's motion for judicial intervention (Dkt. No. 49); (5) plaintiff's motions for protective order (Dkt. Nos. 59, 60); and (6) plaintiff's motion for court-ordered confidential calls (Dkt. No. 71).
The amended complaint alleges that plaintiff was transferred to CSP-S on June 1, 2000, for the express purpose of facilitating his mental health treatment.*fn3 (Dkt. No. 20, at 4.) The gravamen of the complaint is that in 2003 CSP-S prison officials mishandled plaintiff's complaints of sexual misconduct by correctional officer Mary Brockett, relied on plaintiff to execute a sting operation against Brockett and to participate in an internal affairs investigation that resulted in Brockett's dismissal, then retaliated against plaintiff for his participation therein, including denying him adequate mental health treatment. The amended complaint alleges causes of action for use of excessive force, retaliation, deliberate indifference to plaintiff's mental health needs, failure to investigate plaintiff's complaints of sexual misconduct and to protect him accordingly, and failure to provide adequate supervision of correctional and mental health staff. (Dkt. No. 20, at 18-20.) Plaintiff seeks damages, costs and attorneys' fees. (Id. at 20.)
A. STATUTE OF LIMITATIONS
While the other defendants waived service of process (Dkt. No. 37) and timely appeared in this action pursuant to their motion to dismiss filed November 6, 2009 (Dkt. No. 35), defendant Mary Brockett was personally served process on November 18, 2009 (Dkt. No. 40), rendering her answer due on or before December 9, 2009. See Fed. R. Civ. P. 12(a)(1)(A)(I). Brockett did not file her answer until January 8, 2010 (Dkt. No. 51), and on January 14, 2010, filed an untimely motion to dismiss requesting that she be joined in the other defendants' motion to dismiss, along with her further contention that plaintiff's claims against her are barred by the applicable statute of limitations (Dkt. No. 53).
Plaintiff responded with an untimely opposition (Dkt. No. 77),*fn4 pursuant to which he also seeks monetary sanctions ($250) against Brockett's attorney for "attempting to 'mislead' the court. . ." (id. at 3).
The court accepts nunc pro tunc the filings of both plaintiff and defendant Brockett. The court separately addresses Brockett's statute of limitations contention before addressing the shared contention of all defendants that plaintiff has failed to exhaust his administrative remedies.
"Dismissal on statute of limitations grounds can be granted pursuant to Fed. R. Civ. P. 12(b)(6) 'only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.' Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991) (quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980))." TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). "On a motion to dismiss for failure to state a claim [pursuant to Fed. R. Civ. P. 12(b)(6)], the court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (citation omitted).
Seeking to dismiss plaintiff's first cause of action (alleging excessive force by Brockett in violation of the Eight Amendment), Brockett contends that plaintiff filed his complaint after expiration of the two-year limitations period applicable to federal civil rights actions filed in California, even if tolling is permitted for the period during which plaintiff exhausted his administrative remedies. However, defendant fails to consider further tolling accorded prisoners and thus, for the reasons explained below, the court finds that plaintiff's civil rights claim against Brockett was timely filed.
Section 1983 does not contain a statute of limitations. Rather, federal courts apply the forum state's statute of limitations for personal injury actions, as well as the forum state's law regarding tolling. Wilson v. Garcia, 471 U.S. 261, 275 (1985); Hardin v. Straub, 490 U.S. 536, 537-39 (1989); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). Effective January 2003, California's statute of limitations for personal injury actions is two years. Cal. Civ. Proc. Code § 335.1. Additionally, under California law, this statute of limitations is tolled for a period of two years for persons imprisoned for a term less than life.*fn5 Cal. Civ. Proc. Code § 352.1. Moreover, the statute of limitations for a federal civil rights claim is tolled while a prisoner completes the administrative grievance process deemed mandatory by the Prison Litigation Reform Act, 42 U.S.C. § 1997e (a). Porter v. Nussle, 534 U.S. 516, 524 (2002); Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005).
Although a federal court looks to the forum state to determine the applicable statute of limitations, federal law determines when a civil rights claim accrues and thus when the statute of limitations begins to run. Elliott v. City of Union City, 25 F.3d 800, 801-02 (9th Cir.1994); Morales v. City of Los Angeles, 214 F.3d 1151, 1153-54 (9th Cir. 2000). "Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004).
According to the allegations in the amended complaint, read in tandem with plaintiff's administrative appeals, plaintiff knew of defendant Brockett's alleged excessive force against him commencing December 11, 2003. See Amended Complaint (Dkt. No. 20, at 5, 6); (see also, id. at 8 (alleging unwanted advances by Brockett from "late, December 2003, to January 17, 2004")); see also, Grannis Decl., Exh. C (Dkt. No. 35-2, at 23, 27) (602 Appeal, IAB Case No. 0400629, Local Log No. SAC 04-00946, referencing December 11 & 18, 2003).
Thus, pursuant to the two-year statute of limitations, coupled with the two-year tolling period accorded prisoners serving a term less than life, plaintiff had until December 11, 2007 to file this action. Cal. Civ. Proc. Code §§ 335.1, 352.1. Additional tolling is warranted for the period during which plaintiff exhausted his administrative remedies, viz., from May 11, 2004 to October 12, 2004 (154 days).*fn6 Therefore, the deadline for filing the instant action as to plaintiff's first cause of action against defendant Brockett was May 13, 2008. Plaintiff timely filed the instant action on October 23, 2007.*fn7 Accordingly, the court finds that this action was timely filed as to defendant Brockett, whose separate motion to dismiss should be denied.
Plaintiff's related motion for sanctions against defendant Brockett's counsel for "attempting to 'mislead' the court" (Dkt. No. 77) is without merit. Counsel's advocacy and arguments thereto, while rejected by the court, do not demonstrate a failure to comply with the rules or orders of this court. See Local Rule 110 ("Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court."). Therefore, plaintiff's motion will be denied.
B. EXHAUSTION OF ADMINISTRATIVE REMEDIES
All defendants contend that the majority of plaintiff's claims should be dismissed due to plaintiff's failure to exhaust administrative remedies.*fn8 The court has reviewed all of the documents for each of plaintiff's administrative appeals and finds that they together demonstrate the administrative exhaustion of plaintiff's first cause of action for excessive force against defendant Brockett; second cause of action for retaliation against defendants Vance, Kennedy, Williams, Chapman, Shannon, Joseph, Garcia, Tinseth, Wachter, Morrow, Hill and Gold; third cause of action for deliberate indifference against defendants Vance, Kennedy, Williams, Chapman, Kelly, Jaffe and Martin; fourth cause of action for failure to protect against defendants Vance, Williams, Chapman, Kelly, Jaffe and Martin; and fifth cause of action for failure to supervise against defendants Vance, Williams, Chapman, Kelly, Jaffe, Shannon, Joseph, Hill and Gold.
The Prison Litigation Reform Act ("PLRA") provides that, "[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). Pursuant to this rule, prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001). Moreover, such exhaustion requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules (e.g., deadlines). Woodford v. Ngo, 548 U.S. 81 (2006).
The United States Supreme Court has provided a detailed summary of the process for filing and reviewing prisoner grievances within California (Woodford, supra, 548 U.S. at 85-86). "The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Jones v. Bock, 549 U.S. 199, 218 (2007). In California, prisoners are required to lodge their administrative complaint on a CDC Form 602 which in turn requires only that the prisoner "describe the problem and action requested." Cal. Code Regs. tit. 15, § 3084.2(a). In Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009), adopting the standard enunciated in Strong v. David, 297 F.3d 646 (7th Cir. 2002), the Ninth Circuit held that "when a prison's grievance procedures are silent or incomplete as to factual specificity, 'a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.'" Griffin, 557 F.3d at 1120 (reviewing Arizona procedures), quoting Strong, 297 F.3d at 650. "A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Griffin, 557 F.3d at 1120; accord, Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010) (California grievance procedures).
Further, absent an express requirement to the contrary (which does not exist in the California prison grievance process), "exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances." Jones, 549 U.S. at 219. It is nonetheless appropriate to require that a prisoner demonstrate, through the administrative grievance process and consistent with the PLRA, that he has standing to pursue his claims against a particular defendant. "[A]t an irreducible minimum, Art[icle] III [of the United States Constitution] requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.'" Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979).
The PLRA requires that these administrative remedies be exhausted prior to filing suit. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). The exhaustion requirement applies to all section 1983 claims regardless whether the prisoner files his claim in state or federal court. Johnson v. Louisiana ex rel. Louisiana Dept. of Public Safety and Corrections, 468 F.3d 278 (5th Cir. 2006). Significantly, however, this exhaustion requirement is not jurisdictional but an affirmative defense that may be raised by a defendant in a Rule 12(b) motion to dismiss. See Jones, 549 U.S. at 216 ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints."); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119.
"In 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." Wyatt, 315 F.3d at 1119. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust -- a procedure closely analogous to summary judgment -- then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120, n. 14. However, when the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) ("mixed" complaints may proceed on exhausted claims). Thus, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
2. ANALYSIS OF THE ADMINISTRATIVE APPEALS
Defendants have submitted the declaration of N. Grannis, Chief of the Inmate Appeals Branch, California Department of Corrections. (See Dkt. No. 35-2.) Grannis states that in response to a September 2009 request from defendants' counsel, he researched California's inmate appeals record system to access all appeals filed by plaintiff against the defendants served in this action. (Id. at 4, ¶ 8.) Of the twenty-six appeals filed by plaintiff, Grannis identified six "that involved allegations and/or individuals" presented in the instant action, and has provided copies of the original documents. (Id. at 5, ¶ 9, and 8-33.)
a. Internal Affairs Bureau ("IAB") Case No. 0307257 (Local Log No. SAC 03-02823)
On December 14, 2003, plaintiff filed a 602 appeal against "Correctional Captain S. Vance, and other employees, who participated in the December 10, 2003, holding cell extraction of inmate/patient Manago. " (Dkt. No. 35-2 at 15.) The grievance alleges that despite the statements of Correctional Officer ("CO") Kennedy and Dr. Fishman that plaintiff had been accepted for mental health treatment in the "OHU" (Outpatient Housing Unit), and plaintiff's threats of suicide if he was placed in Ad-Seg (Administrative Segregation), Vance used unlawful influence on other employees to extract plaintiff from his cell, deny his request for ...