The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED AND ACTION BE DISMISSED WITHOUT PREJUDICE
OBJECTIONS DUE WITHIN 30 DAYS
Findings And Recommendations
Plaintiff Marcus R. Ellington ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is 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 against Defendants Lunes, Reynoso, Polk, Diaz, and Clark for retaliation in violation of the First Amendment, and against defendants Lunes and W. Jones for deprivation of property in violation of the Due Process Clause of the Fourteenth Amendment.
On December 8, 2009, Defendants filed a motion to dismiss pursuant to the unenuemerated portion of Federal Rule of Civil Procedure 12(b), for Plaintiff's failure to exhaust administrative remedies. (Defs.' Mot. Dismiss, ECF No. 43.) On June 30, 2010, Plaintiff filed his opposition, entitled "Notice/Plaintiff's Renewed Demonstration of Exhaustion of Administrative Remedies Per-Court Order." (Pl.'s Opp'n, ECF No. 66.) On July 26, 2010, Defendants filed their reply. (Defs.' Reply, ECF No. 68.) The matter is submitted pursuant to Local Rule 230(l).*fn1
II. Summary Of Second Amended Complaint
Plaintiff was previously incarcerated at California Substance Abuse Treatment Facility ("CSATF"). On December 27, 2008, at approximately 5 PM, Plaintiff's cellmate Hill told registered nurse Giwa during medication distribution that Hill was going to kill himself. (Pl.'s Second Am. Compl. ("SAC"), p. 3.) Hill was removed from his cell to the clinic, where he informed Defendant Dergeant Lunes that unless Plaintiff was moved, Hill would kill Plaintiff. Defendant Lunes ordered Hill moved to another cell, and Plaintiff was placed into a holding cage at the clinic. (SAC, p. 3.) Defendant Lunes ordered a cell search as punishment for Plaintiff having a series of cell changes due to his bipolar condition. (SAC ¶ 5.) Defendant Captain Reynoso is aware that Plaintiff is not a Crip gang member and has difficulty being housed with Crip gang members, but Reynoso continued to house Plaintiff with Crips. (SAC ¶ 6.) During the cell search, Defendant W. Jones confiscated and destroyed several of Plaintiff's items. (SAC ¶ 11.)
Defendant Lunes ordered Plaintiff returned to his cell, where Plaintiff found his cell in shambles. (SAC ¶ 7.) Plaintiff refused to enter his cell. (Id.) Plaintiff was then wheeled back to the holding cage in at the clinic where Defendant Lunes informed Plaintiff that he was going to Administrative Segregation Unit ("ASU") for threatening Defendant Lunes and that Plaintiff would be transferred. (SAC ¶ 9.)
Plaintiff was placed in ASU on December 27, 2008. (SAC ¶ 13.) Defendant Lunes found an old confidential memorandum that included an inmate's statement that Plaintiff is a gang member. (SAC ¶ 13.) Defendant Lunes included this memorandum in his supplemental report to the Rules Violation Report concerning threats. (SAC ¶ 13.)
Defendant Captain Reynoso reviewed the threat charge and found the charge to be unsubstantiated. (SAC ¶ 14.) Defendant Reynoso changed the charge to "behavior that might lead to violence," despite not having any authority to do so. (SAC ¶ 15.)
On January 23, 2009, Plaintiff was taken to Institutional Classification Committee ("ICC") where Defendant Reynoso asked Defendant Polk to retain Plaintiff in ASU and transfer him because of Defendant Lunes's report. (SAC ¶ 19.) Defendant Polk did not permit Plaintiff to speak at the hearing and agreed with Defendant Reynoso's assessment. (SAC ¶ 20.)
Plaintiff then contacted Defendant deputy chief warden Diaz and explained to him that the threat charge which led to Plaintiff's placement in ad seg had been dismissed and that Plaintiff should thus be released. Defendant Diaz ordered that Plaintiff be brought to the next ICC hearing and if there was no other reason to retain Plaintiff in ...