The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION TO DISMISS CAUSE OF ACTION FOR RETALIATION
On August 27, 2010, Defendants Frances Garza, Emily Vargas, Catherine Nacar, Michael Van Natta and Mark Smith filed the present motion to dismiss Plaintiff Steven C. Martinez's cause of action for retaliation. The motion was referred to this Court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Pursuant to Local Rule 230(g), the Court deemed the matter suitable for decision without oral argument and the matter was submitted on the record.
Plaintiff Steven Martinez ("Plaintiff" or "Martinez") filed this civil rights action on May 21, 2009, against Defendants Derral G. Adams, William J. McGuinness, M.D., Frances Garza, Emily Vargas, Catherine Nacar, Michael Van Natta, Mike Smith, Cornelio Garcia and Paul Sena.*fn1
On March 9, 2010, the Court dismissed with prejudice the claims against Defendants Adams and McGuinness and severed and dismissed without prejudice the claims against Defendants Cornelio Garcia and Paul Sena.*fn2 The Court ordered the matter to proceed with Plaintiff's claims against Defendants Garza, Vargas, Nacar, Van Natta and Smith ("nurse defendants" or "Defendants").
On August 27, 2010, Defendants filed the instant motion to dismiss Plaintiff's fourth cause action for retaliation based on a failure to exhaust administrative remedies. Defendants also filed a request for judicial notice. On September 10, 2010, Plaintiff filed his opposition, arguing that he provided notice of retaliation through the grievance process.
On September 16, 2010, Defendants filed a reply. In their reply, Defendants concede that Plaintiff has exhausted his retaliation claim against Nurse Garza. Defendants therefore request that the Court grant the motion to dismiss the retaliation claim as to the remaining nurse defendants, Vargas, Nacar, Van Natta and Smith.
I. FACTUAL ALLEGATIONS IN THE COMPLAINT
Plaintiff is incarcerated at California State Prison - Corcoran ("CSPC"). He is a quadriplegic and an insulin dependent diabetic. He generally alleges that he is a victim of abuse and negligence. Defendants Vargas, Nacar, Van Natta and Smith are nurses who have provided services to Plaintiff during his incarceration.
Plaintiff alleges that on November 7, 2007, Nurse Vargas made a death threat against him as "retaliation for Plaintiff asserting his rights." Plaintiff claims that Nurse Vargas further retaliated by filing charges against him that ...