The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED OBJECTIONS, IF ANY, DUE IN THIRTY/ DAYS
Plaintiff Orlando Payne ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at the Kern Valley State Prison in Delano, California ("KVSP"), where the events at issue allegedly occurred. Plaintiff filed the complaint commencing this action on January 21, 2009. (Doc. 1.) This action now proceeds on Plaintiff's Amended Complaint filed on March 27, 2009, against Acting Warden K. Harrington for supervisory liability; against C/O G. Gonzales, C/O M. Tafoya,*fn1 and Appeals Coordinator T. Billings for retaliation under the First Amendment and for failure to protect Plaintiff under the Eighth Amendment; against C/O Gonzales and C/O Tafoya for violation of Plaintiff's constitutional right to privacy and First Amendment right to send mail; and against C/O Gonzales for violation of Plaintiff's First Amendment right to receive mail.*fn2 (Doc. 7.) On December 15, 2009, defendants Harrington, Gonzales, and Billings ("Defendants") filed a motion to dismiss this action for failure to exhaust administrative remedies. (Doc. 28.) On January 13, 2010, Plaintiff filed an opposition to the motion.*fn3 (Docs. 29-32.) On January 25, 2010, Defendants filed a reply to Plaintiff's opposition. (Doc. 34.) Defendants' motion to dismiss is now before the Court.
II. SUMMARY OF PLAINTIFF'S ALLEGATIONS AMD CLAIMS
Plaintiff makes allegations and brings claims as follows in the Amended Complaint.*fn4
Plaintiff arrived at KVSP from Corcoran State Prison on September 30, 2008. At the time of the events at issue, the defendants were state employees at KVSP, and the events at issue allegedly occurred at KVSP, largely during October, November, and December 2008.
A. Defendants Billings, Gonzales, and Tafoya - Retaliation
Plaintiff claims that defendants Billings, Gonzales, and Tafoya retaliated against him in violation of the First Amendment by interfering with the processing of his prison appeals.
Plaintiff alleges that on October 28, 2008, Billings, an appeals coordinator, refused to allow Plaintiff's grievance to be processed at the first level, stating that Plaintiff had to use the informal level first, and that he already filed a duplicate appeal. Plaintiff alleges that Billings sent Plaintiff's appeal to staff for an informal response, knowing that informal responses are not tracked and therefore get lost. Plaintiff alleges that Billings told him that remedies are not available to him when prison officials fail to respond to grievances during the time period required by CDCR regulations, and that Billings refused to process Plaintiff's grievance to the next level. Plaintiff alleges that Billings singled Plaintiff out for harassment and intimidation for filing 602 grievances and appeals.
Plaintiff alleges that on November 5, 2008, Gonzales called Billings and told him not to process any of Plaintiff's 602 appeals. Plaintiff maintains that this deprived him of speedy review of his grievances, which is often essential to any effective redress prior to bringing a § 1983 civil suit. Plaintiff claims this is the reason he was unable to exhaust his state remedies.
B. Defendants Gonzales and Tafoya -- Retaliation, Failure to Protect, and Mail Interference
Plaintiff claims that defendants Gonzales and Tafoya retaliated against him for filing prison appeals, by interfering with his constitutional right to send and receive mail and causing him to be placed in danger from other inmates.
Plaintiff alleges that on October 29, 2008, Gonzales told other inmates to tell Plaintiff's cellmate that if the cellmate moved out of Plaintiff's cell, Gonzales would give back the cellmate's property. Plaintiff alleges that Tafoya and Gonzales caused other inmates to threaten to assault Plaintiff because of his civil suit against Gonzales. Plaintiff alleges that Tafoya told Plaintiff's cellmates that Plaintiff is a problem and they should "do what they have to do" or Tafoya will move them. Plaintiff alleges that Tafoya harassed him, and that Plaintiff asked Tafoya numerous times to be moved to another housing unit or another yard, but Tafoya refused. Plaintiff alleges that on November 13, 2008, Gonzales tried to get other inmates to assault Plaintiff and/or make Plaintiff drop his 602 grievance, citizen's complaint, and civil suit.
Plaintiff alleges that on November 6, 2008, Gonzales withheld Plaintiff's mail and kept it in the Housing Unit Staff Office. Plaintiff alleges that Gonzales refused to allow Plaintiff's personal mail, and some legal mail, to be sent out via institutional mail, forcing Plaintiff to send his mail out through another inmate in another housing unit. Plaintiff also alleges that from November 28, 2008 until January 26, 2009, Gonzales punished Plaintiff for his ...