The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND DISMISSING
Plaintiff Claude Raymond Smith ("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 amended complaint against (1) Defendants C. Rodriguez and G. Rangel for retaliation in violation of the First Amendment, (2) Defendants J. Gerfen and P. DeOchoa for deprivation of property in violation of the Due Process Clause of the Fourteenth Amendment, and (3) Defendant C. Boyer for violation of the Eighth Amendment. Pending before the Court is Defendants Rodriguez, Rangel, DeOchoa, and Gerfen's motion to dismiss, filed April 26, 2010, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and the unenumerated portion of Rule 12(b) for failure to exhaust administrative remedies. Doc. 23, Defs.' Mot. Dismiss. Plaintiff filed his opposition on July 2, 2010. Doc. 27, Pl.'s Opp'n.*fn1
Defendants filed their reply on July 7, 2010. Doc. 28, Defs.' Reply. The matter is submitted pursuant to Local Rule 230(l).
II. Summary of Amended Complaint
Plaintiff was previously incarcerated at California State Prison, Corcoran ("CSP") in Corcoran, California, where the events giving rise to this action allegedly occurred. Plaintiff alleges the following. On November 25, 2004, Plaintiff was attacked in his cell by inmate Sample. Sample hit Plaintiff in the back of the head with bars of soap inside a sock. While Plaintiff was unconscious, Sample hit Plaintiff about the head and face with clenched fists. When Plaintiff began to regain consciousness, Sample proceeded to choke Plaintiff with his arm around the throat. Plaintiff managed to bite Sample in the chest until he let him go. The cell doors were then opened for exercise yard release. Plaintiff informed building officers of the incident.
Plaintiff was given a copy of inmate Sample's CDC 128-G classification chrono that stated inmate Sample had a history of violence and assaults. The classification committee of elected to place Sample on single cell status. On November 17, 2004, Sample was moved from administrative segregation ("ad-seg") and placed in Plaintiff's cell. Sample had been placed in ad-seg for assaulting another inmate with the bottom brush of a large push broom. Defendant Sergeant C. Boyer placed Sample in Plaintiff's cell the night of November 17, 2004 and informed Plaintiff that he was going to ad-seg if he did not accept Sample as an inmate. Sgt. Boyer was aware of Sample's propensity for violence and placed him in Plaintiff's cell anyway. Plaintiff returned to work and informed Defendant J. Gerfen of how he had been assaulted, which J. Gerfen found funny.
On November 29, 2004, Plaintiff filed an inmate grievance concerning his assault, which was reviewed by defendants C. Rodriguez and G. Rangel. Plaintiff had been working at a kitchen job, but was transferred to a position as a CC II clerk working with Defendant G. Rangel in the program office on April 2, 2005. Defendant Rodriguez then harassed Plaintiff by repeatedly telling him that Rodriguez did not need a clerk who had paperwork pending against the system. Plaintiff was told to drop the 602 grievance or find a new job. Approximately May 16, 2005, Plaintiff's cell was searched, and the searching officers found an old typewriter ribbon from Plaintiff's previous job as peer education teacher, as well as a roll of tape. Defendant Rodriguez stated that Plaintiff was fired for stealing state property. Captain Andrews told defendants Rangel and Rodriguez that Plaintiff was not to be fired or disciplined without prior consultation with Andrews. Defendants Rodriguez and Rangel then informed the two other CC II clerks that as long as Plaintiff was working in the office, the two clerks would receive none of the benefits. Plaintiff continued to work in the program office until July 27, 2005, when he was placed into ad-seg for threatening inmate Jennings, defendant Rodriguez's personal clerk. Inmate Jennings was ordered to set up Plaintiff so that Plaintiff would be sent to ad-seg.
Once in ad-seg, several personal items belonging to Plaintiff were lost/stolen/given away by defendants J. Gerfen and P. DeOchoa. Plaintiff as a result of the cell attack cannot hear clearly out of his right ear, and has fading eyesight, loss of equilibrium, hypertension, and fear of other inmates.
Plaintiff seeks monetary damages, an attorney, single cell status, and injunctive relief to prevent reprisal by any CDCR staff.
III. Failure To State ...