The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b) & 12(b)(6) [Doc. No. 60]
In this prisoner civil rights case, Whittier Buchanan ("Plaintiff"), is proceeding in pro se and in forma pauperis ("IFP") pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915(a). Defendants Baker, Contreras, Fuga, Garcia, Garza, Limon, Pederson, Salcedo and Verkouteren filed a Motion to Dismiss Plaintiff's First Amendment Complaint ("FAC") pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 46]. On July 27, 2010, the Court granted in part, and denied in part, Defendants' Motion. (See July 27, 2010 Order at 11.) However, because the remaining Defendants, Antley, Grannis and Hodge, had only been recently served in this action, the Court informed Plaintiff to wait until the Court had ruled on Antley, Grannis and Hodge's separate Motion to Dismiss before moving forward. (Id. at 10.) The Court made clear to Plaintiff that Defendants Verkouteren, Garcia, Salcedo, Pederson and Contreras were dismissed from this action and Plaintiff could not amend his First Amended Complaint to contain claims against these Defendants. Id. at 4-5.
Currently before the Court is Defendants Antley, Grannis and Hodge's ("Defendants") Motion to Dismiss Plaintiff's First Amended Complaint pursuant to FED.R.CIV.P. 12(b) and 12(b)(6) [Doc. No. 60.]*fn1 On August 23, 2010, Plaintiff filed his Opposition to which Defendants have not filed a Reply.
II. Factual Background*fn2
In his First Amended Complaint, Plaintiff alleges that the events that gave rise to this action occurred while he was incarcerated at the Richard J. Donovan Correctional Facility ("RJD") from February 7, 2007 to October 23, 2007. (See FAC at 1.) In 2007, Plaintiff had a pending lawsuit against the California Substance Abuse Treatment Facility ("CSATF") for which he requested that Defendant Sterling, the Legal Technician Assistant, provide him with copies of legal documents. (Id. at 4.) Plaintiff claims that Defendant Sterling's "lack of legal assistance" caused Plaintiff to "miss his Court deadline." (Id.) Because he claims that Sterling's actions "hindered his efforts to process his legal claims," Plaintiff filed an administrative grievance against Sterling. (Id.)
Plaintiff claims that when Sterling became aware of Plaintiff's grievances, she began to lose or misplace Plaintiff's legal documents and refused him access to the prison law library. (Id.) As a result, Plaintiff's lawsuit was dismissed. (Id.)
Plaintiff further claims that Defendants Salcedo, Baker and Limon "were not supplying Plaintiff with indigent envelopes" so he filed an administrative grievance against Salcedo, Baker and Limon. (Id.) Plaintiff informed Salcedo that he had pending litigation which is why he needed the envelopes and requested her assistance to process his legal mail. (Id.) Because Salcedo refused to do so, Plaintiff filed another administrative grievance against Salcedo. (Id.) Plaintiff alleges that "in retaliation, Defendant Salcedo conspired with Defendants' Baker and Limon" to not "pick up/process Plaintiff's legal mail to the courts." (Id.)
Defendant Verkouteren came to Plaintiff's cell on June 3, 2007 to interview Plaintiff with respect to his administrative grievances regarding Salcedo, Baker and Limon. (Id. at 5.) Plaintiff alleges Defendant Verkouteren had Salcedo process one piece of Plaintiff's legal mail but he also informed Plaintiff that if Plaintiff continued to file administrative grievances, the Defendants would continue to refuse to process his legal mail. (Id.) Plaintiff claims that these statements indicate a conspiracy between Verkouteren and the other defendants to retaliate against Plaintiff for filing administrative grievances against Salcedo, Baker and Limon. (Id.)
On May 30, 2007, Plaintiff was standing outside of the "program office" when Defendant Garza emerged from the office and "gave Plaintiff a direct order to 'stop filing 602's!'" When Plaintiff attempted to explain why he needed to file the grievances, Garza "abruptly cut Plaintiff off yelling '[racial explicative], you don't have any rights, you are a criminal, criminals don't have rights.'" (Id.) Garza continued to use racially derogatory language towards him. (Id.) Plaintiff claims Defendant Garza "yanked his [stick] from his waistbelt" and ordered Plaintiff to "get down." (Id.) Plaintiff complied by laying down on his stomach at which time Garza ordered Defendant Fuga and "Jane Doe" to "cuff him." (Id.) Plaintiff informed Defendants Fuga and Doe as they "began to jerk Plaintiff's arms behind his back" that he had a medical chrono indicating that Plaintiff had a disability that provided for him to be handcuffed in the front and not behind his back due to a herniated disk. (Id.) Defendants Fuga and Doe ignored this information and were "kneeing Plaintiff roughly in his back, neck and the lower parts" of his body. (Id.) Plaintiff claims that a number of medical care employees and correctional officers observed this altercation but failed to protect him from injury.
Plaintiff cried out "you're hurting me." (Id. at 6.) "Upon hearing this, Defendant Garza gave Defendants Jane Doe and Fuga a direct order to 'hurt him.'" (Id.) Plaintiff claims that Fuga and Doe "became even more malicious and sadistic" by "jerk[ing] twice on Plaintiff's left arm" which resulted in an "audible popping sound." (Id.) Plaintiff claims Defendant Garza continued to yell racial explicatives towards him and ordered Fuga and Doe to stand Plaintiff up. (Id.) As Plaintiff was crying, he claims that Defendant Garza "saw that he had actually 'silenced' Plaintiff" and ordered Fuga to take Plaintiff back to his cell. (Id.) Plaintiff asked Fuga to take him to the infirmary as he was in "extreme pain" but Fuga refused. Plaintiff contends that Garza, Fuga and Doe entered into a conspiracy to deprive him of his constitutional rights.
On August 16, 2007, Plaintiff claims that he was asked by Defendant Hodge to "snitch" on another inmate. (Id.) When Plaintiff refused, Hodge took Plaintiff's prescription sunglasses. (Id.) Because Plaintiff continued to refuse to be a "snitch," and due to the fact that Plaintiff filed a grievance against him, Hodge began acts of retaliation against Plaintiff. (Id.) Plaintiff claims that Hodge would take personal property from Plaintiff and give them to other inmates. (Id. at 7.) Plaintiff alleges that Hodge would refuse to allow Plaintiff to attend church services or sing in the prison's gospel choir. (Id.)
III. DEFENDANTS MOTION TO DISMISS PURSUANT TO FED.R.CIV.P.12(b)
The Court will first consider Defendants Grannis and Sterling's*fn3 arguments that claims against them found in Plaintiff's First Amended Complaint should be dismissed for failing to exhaust available administrative remedies pursuant to FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a).
A. Standard of Review per FED.R.CIV.P.12(b) and 42 U.S.C. § 1997e(a)
Defendants Grannis and Sterling claim Plaintiff failed to exhaust available administrative remedies pursuant to 42 U.S.C. § 1997e(a) before bringing this suit, therefore, they seek dismissal under the "non-enumerated" provisions of FED.R.CIV.P. 12(b). The Ninth Circuit has held that "failure to exhaust non-judicial remedies is a matter of abatement" not going to the merits of the case and is properly raised pursuant to a motion to dismiss, including a non-enumerated motion under FED.R.CIV.P. 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003)It is also well established that non-exhaustion of administrative remedies as set forth in 42 U.S.C. § 1997e(a) is an affirmative defense which defendant prison officials have the burden of raising and proving. See Jones v. Bock, 594 U.S. 199, 216 (2007); Wyatt, 315 F.3d at 1119. ...