The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss, filed on April 23, 2010, brought by defendant Correctional Sergeant Bishop, to which plaintiff filed his opposition on May 11, 2010, after which defendant filed a reply on May 17, 2010. After carefully reviewing the record, the undersigned recommends that defendant's motion should be granted on the ground of plaintiff's failure to exhaust administrative remedies.
Plaintiff's complaint, originally filed May 6, 2009, proceeds on his
second amended complaint ("SAC"), filed October 16, 2009. Plaintiff is
a prisoner at Salinas Valley State Prison, in the custody of the
California Department of Corrections and Rehabilitation
("CDCR"), but the allegations of his complaint are premised on his
prior incarceration at California State Prison-Sacramento. The SAC
alleges that defendants Correctional Sergeant B. Bishop and
Correctional Officer R. Wenkler, each acting in their individual and
official capacities, engaged in a "campaign of retaliatory harassment"
against plaintiff for filing grievances against Wenkler.*fn1
Plaintiff further alleges two incidents in which, pursuant to
Bishop's orders, plaintiff was placed in a holding cell contaminated
with pepper spray. Plaintiff alleges that defendants Bishop and
Wenkler violated his First Amendment right to be free of retaliatory
conduct for protected activity, and that defendant Bishop additionally
violated his Eighth Amendment rights by subjecting plaintiff to cruel
and unusual punishment and showing deliberate indifference to his
In its February 24, 2010 findings, subsequently adopted by the district court on April 6, 2010, this court found that for screening purposes, Claim One stated a retaliation claim against defendant Wenkler only. Although the pending motion to dismiss is brought by defendant Bishop, the undersigned describes Claim One because its allegations relate to Claims Two and Three against Bishop, and because defendants have indicated that Bishop and Wenkler intend to file a single responsive pleading following the court's ruling on the instant motion. Motion to Dismiss ("MTD ") at 3, fn. 1.
Plaintiff's first claim alleges, in relevant part, that plaintiff filed a grievance against Wenkler, but was persuaded by another officer to withdraw his grievance upon the promise that Wenkler would become more respectful. However, Wenkler allegedly became more abusive and engaged in a "'campaign of retaliatory harassment' toward plaintiff" for filing the grievance, which included making false reports about plaintiff to defendant Bishop. One such report was that another inmate engaged in unauthorized photocopying on plaintiff's behalf. As a result, plaintiff was punished with a week-long search of his cell and denial of telephone access for a month. SAC at 4-7.
In his second claim, plaintiff alleges that "[a]s a direct result" of the facts set forth in Claim One, particularly "for filing and participating in the filing of inmates grievances," Wenkler continued his retaliatory campaign against plaintiff, which was further endorsed and promoted by Wenkler's immediate supervisor, defendant Bishop. SAC at 7. Plaintiff describes two incidents in this claim.
In the first incident, plaintiff alleges that Wenkler refused to allow plaintiff entrance to his housing unit after a counseling appointment on June 29, 2006, then reported to Bishop that plaintiff was "roaming the yard facility following recall and couldn't account for time." Bishop then ordered that plaintiff be locked for more than an hour in a holding cage that "was drenched and reeked of pepper spray," where plaintiff was required to strip to his shorts, resulting in bodily contact with the pepper spray and causing "burning of skin, lungs, and eyes, teary eyes and shortness of breath." Plaintiff alleges that Bishop refused to resolve plaintiff's dispute with Wenkler or remove plaintiff from the holding cage, telling him to shut up and that he was "property of CDC"; that Bishop thereafter denied plaintiff "medical decontamination" or even a "regular shower" to rid himself of the pepper spray, instead requiring that he spend the night with burning skin "to teach him a lesson" for filing a grievance. SAC at 7- 10; MTD, Ex. A at 2 (indicating date of incident).
In its February 24, 2010 findings, later adopted by the district court, the undersigned noted its previous holding that "the first incident states an Eighth Amendment cruel or unusual punishment claim against Bishop based on plaintiff's placement, with minimal clothing, in the holding cell contaminated with pepper spray, denying plaintiff an opportunity to cleanse his body, and plaintiff's resulting injuries." Doc. 19 at 9. In addition, "this incident supports First Amendment retaliation claims against both Wenkler and Bishop, based on plaintiff's allegation that their conduct was cooperative and motivated by retaliation." Id. at 10. RVR Incident
The second incident alleges that "[t]o further impose retaliatory campaign of harassment for being labeled a 'rat' for filing and participating in the filing of inmate grievance(s), Defendant Bishop ordered Plaintiff be subjected to disciplinary proceedings on false Rules Violation Report (RVR) charges of 'Refusing a Direct Order,' which chilled Plaintiff's first amendment right to file an inmate grievance[.]" SAC at 10.
In its February 24, 2010 findings, the undersigned found that the second incident supports a retaliation claim against Bishop. "In summary, Claim Two states an Eighth Amendment claim against Bishop, and First Amendment claims against both Wenkler and Bishop." Doc. 19 at 10.
In plaintiff's third claim, described in this court's findings of February 24, 2010, plaintiff alleges that Wenkler intercepted a "class action" grievance that plaintiff had helped prepare. While plaintiff waited for the RVR hearing described in Claim Two, Wenkler allegedly told Bishop, falsely, that plaintiff had threatened him, and requested plaintiff to be put in administrative segregation. Notwithstanding plaintiff's protests that Wenkler was retaliating against him, Bishop allegedly ordered that plaintiff be locked in a holding cage contaminated with pepper spray (the second "holding cage" incident alleged by plaintiff). Plaintiff alleges that he was left in the cage for over an hour in his boxer shorts, where he was exposed to high temperatures and the painful effects of the pepper spray. Bishop allegedly denied plaintiff's request to move him to a cell out of direct sunlight, and plaintiff was forced to attend the RVR hearing "with burning skin, eyes, and lungs, dizziness, nausea and blurred vision . . ." SAC at 10-13; Doc. 19 at 10-11. This incident allegedly took place on July 17, 2006. MTD, Ex. B. at 2.
In its February 24, 2010 findings, the undersigned determined that Claim Three alleged "First Amendment claims against Wenkler and Bishop, and an Eighth Amendment claim against Bishop for cruel and unusual punishment." Doc. 19 at 11. It also alleged an ...