The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT'S MOTION TO DISMISS BE GRANTED (Doc. 53) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Anthony Keel ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 14, 2009, Defendant Chris Chrones filed a motion to dismiss on the grounds that Plaintiff failed to exhaust his administrative remedies prior to filing suit and that Plaintiff's first amended complaint fails to state a claim upon which relief can be granted. (Doc. #53.) On October 29, 2009, Plaintiff filed an opposition to Defendant's motion. (Doc. #55.) On November 13, 2009, Defendant filed a reply to Plaintiff's opposition. (Doc. #57.)
On January 13, 2010, Plaintiff filed a document entitled "Motion to Return Three Exhibits Back to the Court as Genuine Facts with the of [sic] Seven Exhibits [sic] that the Court have in its Possession. And Motion to Submit Exhibit(m)." (Doc. #63.) On January 20, 2010, Defendant filed a motion to strike the document, construing it as a surreply. (Doc. #64.) However, Plaintiff's January 13, 2010 filing appears to be a separate motion unrelated to Defendant's motion to dismiss.*fn1
Thus, the Court will not consider any of the arguments or allegations raised in the January 13, 2010 filing in resolving Defendant's motion to dismiss.
Plaintiff claims that prison officials at Kern Valley State Prison ("KVSP") violated his constitutional rights. Plaintiff claims that Defendant Wash found an administrative grievance in Plaintiff's cell that accused Wash of discriminating against Plaintiff. Plaintiff alleges that Wash arranged for other inmates to attack Plaintiff in retaliation for the administrative grievance. Plaintiff also alleges that Defendant Burrows participated in the attack because Burrows watched the attack take place without intervening. Plaintiff also alleges that Burrows did not allow medical staff to treat Plaintiff by directing them to go elsewhere in an attempt to cover up the attack. Plaintiff claims that Defendant Chris Chrones ignored a threat to Plaintiff's safety by denying Plaintiff's request for a transfer or placement in protective custody. Plaintiff requested the transfer because he felt threatened by Wash and Burrows. Plaintiff claims that instead of granting the request, Chrones placed Plaintiff in the D-Facility Yard where Plaintiff was stabbed by Mexican inmates.
On February 18, 2010, the Court dismissed Defendants Burrows and Wash pursuant to Federal Rule of Civil Procedure 4(m) because Plaintiff failed to effect service of process on them. (Doc. #69.) The U.S. Marshal was directed to serve Burrows and Wash with a summons and a copy of Plaintiff's complaint. However, the U.S. Marshal was unable to effect service of process using the information provided by Plaintiff. Thus, this action proceeds only on Plaintiff's claims against Defendant Chrones.
B. Defendant's Motion to Dismiss
Defendant argues that he is entitled to dismissal because Plaintiff failed to exhaust his administrative remedies prior to filing this action. Defendant also argues that he is entitled to dismissal of this action under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff's complaint fails to state a claim upon which relief can be granted.
Defendant argues that the Prison Litigation Reform Act ("PLRA") requires Plaintiff to exhaust all administrative remedies prior to filing a lawsuit concerning prison life. (Def.'s Notice of Mot. and Mot. to Dismiss; Supporting Mem. of P. & A. 4:18-22.) Defendant claims that Plaintiff "has not filed any administrative grievance, which was accepted for review, regarding his claim that Officer Chrones failed to protect him in violation of the Eighth Amendment." (Mot. to Dismiss 6:7-9.)
Defendant also argues that the allegations in the complaint fail to state a claim under the Eighth Amendment. (Mot. to Dismiss 6:14-9:21.) Defendant argues that in order to state an Eighth Amendment claim, Plaintiff must allege facts that show that Defendant acted with deliberate indifference. (Mot. to Dismiss 8:3-25.) Defendant contends that Plaintiff's complaint fails to allege sufficient facts to establish that Chrones acted with deliberate indifference because there are no allegations that show that Chrones actually knew of and/or disregarded any "then-current risk to [Plaintiff's] safety." (Mot. to Dismiss 8:26-9:1.)
Defendant argues that Plaintiff had previously complained to Chrones about the problems he had with Wash and Burrows on B-Facility. (Mot. to Dismiss 9:5-7.) However, Defendant argues that Plaintiff's complaints about the incidents on B-Facility would not have alerted Chrones about any threat on D-Facility. (Mot. to Dismiss 9:5-7.) Thus, Defendant argues that there are no allegations that suggest that Chrones was aware that D-Facility was unsafe for Plaintiff. (Mot. to Dismiss 9:8-10.) Further, Defendant argues that Plaintiff has not alleged any facts that suggest the December stabbing on D-Facility was in any way related to the August 2007 incidents on B-Facility. (Mot. to Dismiss 9:11-13.) Defendants contend that the stabbing on D-Facility was wholly unrelated to the B-Facility incidents because the stabbing took place three months after ...