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Richard Bassett v. E. Callison

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 21, 2010

RICHARD BASSETT, PLAINTIFF,
v.
E. CALLISON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. The parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Pending before the court is defendants' September 30, 2010 motion to dismiss filed on the grounds that plaintiff failed to exhaust administrative remedies, with the exception of the alleged excessive force claim against defendant Callison, and that plaintiff failed to state cognizable due process or equal protection claims under the Fourteenth Amendment. After carefully reviewing the record, the undersigned concludes that defendants' motion to dismiss should be granted.

A. Legal Standard re Exhaustion

The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.

Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734. The fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records).

A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Brown, 422 F.3d at 936-37.

As noted above, the PLRA requires proper exhaustion of administrative remedies.

Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84.

The State of California provides its prisoners the right to appeal administratively "any departmental decision, action, condition or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a) (2010). It also provides them the right to file appeals alleging misconduct by correctional officers and officials. Id. at § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal.Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.

Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court may look beyond the pleadings to determine whether a plaintiff exhausted his administrative remedies. Id. at 1119-20.

B. Plaintiff's Allegations

Pursuant to the mailbox rule, plaintiff constructively filed the original complaint in this action on March 1, 2010.*fn1 The complaint was file-stamped by the Clerk of Court on March 5, 2010. This action is proceeding on the second amended complaint ("SAC"), constructively filed June 15, 2010, and file-stamped on June 21, 2010, as to defendants Callison and Swart. (Dkt. No. 34.) In the SAC, plaintiff alleges the following:

1. On November 27, 2009, during a cell move, defendants used excessive force by slamming him into a wall and holding cage several times, called plaintiff a racial epithet, verbally threatened plaintiff, and placed a sheet soiled with human feces on it on plaintiff's head. (Dkt. No. 34 at 6-7.) Defendant Callison also took plaintiff's eyeglasses. (Id.) Plaintiff was without his eyeglasses from November 27, 2009, until March 24, 2010, and suffered "really bad" headaches. (Id. at 21-24.) When they reached the newly-assigned cell, defendant Swart took dirty water from the commode and poured it on plaintiff's mattress and threw the sheet with feces on it at plaintiff. (Id. at 7.) Defendants took plaintiff's legal property. (Id.)

2. On December 3, 2009, defendant Callison called plaintiff a racial epithet, threw a dinner tray at plaintiff, punched plaintiff in the face while escorting him to the medical clinic, slammed plaintiff into a holding cage, and after placing plaintiff's hands in triangle restraints, pulled plaintiff's hands and wrists out of the tray port in a way to cause plaintiff pain. (Id. at 8-9.)

3. On January 5, 2010, defendant Callison twice called plaintiff a racial epithet, and refused to let plaintiff out to the exercise yard in retaliation for plaintiff filing a prison grievance against Callison. (Id. at 10-11.)

4. On February 3, 2010, defendant Callison called plaintiff a racial epithet, and threatened plaintiff. (Id. at 11.)

5. On March 29, 2010, defendant Callison made threatening gestures toward plaintiff from the watch tower of the housing unit. (Id. at 12.)

6. On April 16, 2010, defendants Callison and Swart verbally harassed plaintiff, searched plaintiff's cell, and threw away plaintiff's legal materials in retaliation for the filing of the instant action. (Id.) Defendant Callison threatened plaintiff to drop the staff complaints or plaintiff would be sorry. (Id.)

C. Evidence re Exhaustion

Defendants have submitted evidence that plaintiff submitted three grievances at High Desert State Prison that were accepted for review between November 27, 2009, and June 21, 2010:

1. Grievance No. HDSP-09-02295. In this grievance, plaintiff alleged that on December 3, 2009, defendant Callison allegedly: harassed plaintiff, called him a racial epithet, refused plaintiff a spoon, threw a food tray at plaintiff, "socked" plaintiff in the left side of his head during an escort, placed plaintiff's hands in triangle restraints, then pulled plaintiff's hands and wrists through the tray port, causing him pain. (Dkt. 51-2 at 6-7.) Plaintiff also complained that "they took my eyeglasses away." (Id. at 7.) Only Correctional Officer Callison is named in this grievance. (Id.) The Director's level review issued on May 27, 2010. (Dkt. No. 34 at 53.)

2. Grievance No. HDSP-10-00507. This grievance addressed defendant Callison's alleged threatening gestures on March 29, 2010, during an escort from the administrative segregation yard into Building 8. (Dkt. No. 51-2 at 9 & 11.) Plaintiff signed this appeal on March 29, 2010. (Id.)

3. Grievance No. HDSP-10-00834. In this grievance, plaintiff alleged his legal mail was opened outside his presence on May 13, 2010, and included no allegations at issue herein. (Dkt. No. 51-2 at 13.) No further analysis of this appeal is required.

In addition, defendants provided the declaration of D. Foston, Chief of the Inmate Appeals Branch, who confirmed that between November 27, 2009, and June 21, 2010, the Inmate Appeals Branch received no appeal from plaintiff that was screened out. (Dkt. No. 51-1 at 2.) Foston also confirmed that for that same time period, only one appeal, HDSP-09-02295, was accepted for Director's level review. (Id.)

D. Analysis

1. Grievance No. HDSP-10-00507

As noted above, this grievance was signed by plaintiff on March 29, 2010. Plaintiff claims he sent this grievance to the third level of review on June 30, 2010. (Dkt. No. 57 at 3.) Plaintiff's original federal complaint was filed March 1, 2010, prior to the occurrence of the March 29, 2010 incidents. Even using the date of the June 15, 2010 filing of the SAC, plaintiff fares no better. Plaintiff sent the grievance for Director's review on June 30, 2010, after he filed the SAC. Therefore, plaintiff cannot demonstrate exhaustion of his claims through grievance HDSP-10-00507 prior to the filing of this action as required under Booth, 532 U.S. at 741. Plaintiff's allegations concerning incidents that took place on March 29, 2010, must be dismissed as unexhausted. This dismissal is without prejudice to their renewal in a new federal action.*fn2

2. Grievance Log No. HDSP-09-02295 a. Plaintiff's Claims

Plaintiff contends that the allegations contained in grievance HDSP-09-02295 exhausted his claims alleged as occurring on both November 27, 2009, and December 3, 2009. Defendants argue that in the initial grievance plaintiff included no mention of: (a) the November 27, 2009 date; (b) allegations concerning the incidents he alleges occurred on that date; or (c) defendant Swart. Defendants also argue that, although the first and second level appeal responses mention that plaintiff spread fecal matter on his cell walls, none of the appeal responses mention the alleged events of November 27, 2009.

"The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007). Where a prison's grievance procedures do not specify the requisite level of factual specificity required in the grievance, "a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (citation omitted). The grievance need not include legal terminology or legal theories unless they are needed to provide notice of the harm being grieved. Id. Nor must a grievance include every fact necessary to prove each element of an eventual legal claim. Id. The purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation. Id.

A close reading of grievance HDSP-09-02295 reflects that defendants are correct. The only allegation stemming from the November 27, 2009 incident included in this grievance is plaintiff's mention that "they" took his eyeglasses. (Dkt. No. 51-2 at 7.) Plaintiff does not mention the date of November 27, 2009, the alleged excessive force into a wall and holding cage, the smearing of feces on a bed sheet, or the placement of the dirty sheet on plaintiff's head. (Id.) There is no mention of defendant Swart or any other staff person. Plaintiff's general comment, at the end of the appeal, stating "CO Callison has assaulted me and also [harassed] me [--] this being the second time something like this has happened," (dkt. 51-2 at 7) is insufficient to alert prison officials to the specific allegations set forth in the SAC about incidents that allegedly took place on November 27, 2009.

Although not addressed by defendants, it appears plaintiff may have attempted to expand his allegations during the administrative exhaustion process. During his initial interview, plaintiff stated he had his head and face forced into sheets that were soiled with his fecal matter. (Dkt. No. 57 at 11.) Plaintiff also reported he had been slammed against a wall by Officer Callison. (Id.) Similarly, in his second interview, plaintiff stated he had his head and face forced into sheets that were soiled with his fecal matter, and had his head slammed against a wall. (Dkt. No. 57 at 13.) However, none of these allegations were cited as happening on November 27, 2009, rather than on December 3, 2009. In the appeal forms provided by plaintiff, there is no indication that plaintiff informed prison officials that these events occurred on a different day. (Dkt. No. 34 at 53-62.) Moreover, both first and second level appeals decisions articulated plaintiff's claims as those specifically alleged in the SAC to have occurred on December 3, 2009, and did not include any of the allegations stemming from the November 27, 2009 incidents as alleged in the SAC.

Plaintiff's attempt to further expand the scope of his grievance on appeal does not comply with the procedural rules requiring him to describe his problem and action requested in Sections A and B of the form. Cal. Code Regs., tit. 15 § 3084.2(a) (2010). "[A]n inmate must first present a complaint at the first level of the administrative process. See Cal.Code Regs. tit. 15, § 3084.5." Sapp v. Kimbrell, 623 F.3d 813, 825 (9th Cir. 2010). Moreover, in the May 27, 2010 Director's Level Appeal Decision, plaintiff was informed: [Plaintiff] has added new issues and requests to his appeal. The additional requested action is not addressed herein as it is not appropriate to expand the appeal beyond the initial problem and the initially requested action (CDC Form 602, Inmate/Parolee Appeal Form, Sections A and B). (Dkt. No. 57 at 16.) The additional complaints raised by plaintiff were disregarded at the Director's Level, and the fact that they were not addressed further does not render them exhausted. See Henderson v. Rodriguez, 2009 WL 817750 at *3-4 (E.D. Cal. 2009).

Accordingly, this court finds that grievance HDSP-09-02295 does not serve to exhaust plaintiff's claims concerning incidents occurring on November 27, 2009, with the exception of plaintiff's claim that his eyeglasses were taken and not replaced for almost four months, because the loss of his eyeglasses is specifically included in HDSP-09-02295. Therefore, defendants' motion to dismiss plaintiff's claims stemming from events occurring on November 27, 2009, is granted in part.

b. Defendant Swart

The court turns now to the question of whether plaintiff has exhausted the claims alleged in grievance HDSP-09-02295 as to defendant Swart. Plaintiff argues that defendant Swart should not be dismissed because he was an active participant with defendant Callison. Defendants contend that plaintiff only exhausted his claims as to defendant Callison in grievance HDSP-09-02295, and failed to plead the alleged involvement of Swart or the events of November 27, 2009 in that grievance.

As noted above, in order to exhaust administrative remedies, plaintiff must include sufficient facts to give prison officials notice and an opportunity to remedy the problem. Griffin, 557 F.3d at 1120.

With regard to plaintiff's claims stemming from events on December 3, 2009, the SAC only names defendant Callison as allegedly violating plaintiff's constitutional rights on December 3, 2009. (Dkt. No. 34 at 9-10.) There are no allegations as to defendant Swart in connection with the December 3, 2009 claims. (Id.) As to plaintiff's claim concerning the taking of his eyeglasses, plaintiff specifically alleges defendant Callison took his eyeglasses. (Dkt. No. 34 at 7.)

The SAC raises only one specific allegation naming defendant Swart, claiming Swart allegedly threw commode water on plaintiff's mattress and threw a feces-soiled sheet on plaintiff's head on November 27, 2009. (Dkt. No. 34 at 6-7.) This allegation is absent from grievance HDSP-09-02295, and the court has found that plaintiff failed to exhaust his claims arising from events alleged to have occurred on November 27, 2009. Moreover, there are no facts alleged in HDSP-09-02295 that are not specifically attributed to defendant Callison. Plaintiff mentions no other correctional officers in the vicinity of these alleged incidents, and raises no claim that anyone other than defendant Callison allegedly used excessive force, took other actions, or failed to take actions, in a way that might put prison officials on notice of a possible constitutional violation by anyone other than defendant Callison.

Because plaintiff has failed to exhaust his claims resulting from incidents on November 27, 2009, and plaintiff raises no allegations as to defendant Swart in the SAC in connection with incidents allegedly occurring on December 3, 2009, defendants' motion to dismiss plaintiff's claims against defendant Swart is granted and plaintiff's claims against defendant Swart are dismissed as unexhausted.

3. Allegations of Obstruction of Exhaustion Attempts

Plaintiff contends he completed and sent in 602 appeals to exhaust his claims as to incidents that occurred on January 5, 2010, February 3, 2010, and April 16, 2010, but "never received any documentation." (Dkt. No. 57 at 3.) Plaintiff has provided his own declarations that state:

a. On January 6, 2010, plaintiff filed a CDC-602 staff complaint against defendant Callison for harassment and denying him yard on January 5, 2010. (Dkt. No. 57 at 26.) Plaintiff states he sent the CDC-602 to the inmate appeals coordinator via institutional mail, but he did not receive a log number or hear anything back on this appeal. (Id.)

b. On February 7, 2010, plaintiff wrote a CDC-602 staff complaint against defendant Callison for harassment and threats on February 3, 2010. (Dkt. No. 57 at 27.) Plaintiff sent the CDC-602 on February 7, 2010, by institutional mail, to the appeals coordinator. By February 26, 2010, plaintiff did not receive a log number or further notice. (Id.)

c. On April 18, 2010, plaintiff completed a CDC-602 appeal form against defendant Callison concerning the April 16, 2010 incident. (Id. at 28.) Plaintiff sent the appeal to the appeals coordinator via institutional mail, and provided a handwritten copy of the CDC-602. (Id. at 29-31.)

As noted above, defendants have provided evidence that between November 27, 2009, and June 21, 2010, the Inmate Appeals Branch did not receive any appeal from plaintiff that was screened out. (Dkt. No. 51-1 at 2.)

Plaintiff is required to rebut the evidence that he failed to exhaust his administrative remedies prior to filing the instant action. Plaintiff provided no evidence that he complied with the inmate administrative grievance process by filing an appeal to second or third levels of review, after he received no response to his first level appeal. Plaintiff has failed to provide specific factual information concerning to whom he gave the appeals, whether he submitted follow-up inquiries regarding these appeals, or whether he attempted to resubmit the appeal once he allegedly received no response. See Stewart v. Evans, 2010 WL 3734874 (N.D. Cal. 2010). As to plaintiff's claims related to incidents occurring on January 5, 2010, and February 3, 2010, plaintiff has failed to provide a copy of the staff complaints he allegedly submitted. Plaintiff did provide a handwritten copy of the April 18, 2010 appeal, which notes he copied it by hand because he had no access to a photocopy machine, but there is no stamp or other marking demonstrating it was received by prison officials, or even noting the prison official to whom it was allegedly presented.

Plaintiff stated, in conclusory fashion, that officials destroyed or lost these appeals. However, he provided no facts or evidence to support this conclusion, and failed to demonstrate that he inquired about the status of the appeals or attempted to re-file the appeals once he heard nothing further. Similarly, plaintiff did not assert that he filed a new administrative grievance challenging the refusal of prison officials to provide informal review of the subject grievance. Plaintiff has provided no basis to conclude that plaintiff made a bona fide effort to obtain informal review of his grievances, and that such review was "effectively unavailable." Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010).

On this record, the court cannot find that plaintiff has rebutted defendants' evidence of plaintiff's failure to exhaust these allegations. Because plaintiff is required to exhaust his claims through three levels of appeals, it is insufficient for plaintiff to simply submit a first appeal and then consider it exhausted because he heard nothing further but took no further action to inquire or appeal to the next level. Plaintiff has not demonstrated that he "took reasonable and appropriate steps to exhaust his . . . claim and was precluded from exhausting, not through his own fault but by [a third party]." Nunez, 591 F.3d at 1224. Plaintiff must make an effort to exhaust his appeals through all three levels of review before he files a complaint in federal court, as required by Booth. See Brown, 422 F.3d at 934-35; Davis v. Evans, 2008 WL 818534 at *4 (N.D. Cal. 2008) (inmate failed to submit higher level appeals after receiving no response to his initial informal 602 appeal); Stutzman v. Wilson, 2009 WL 2901634 at * 3-4 (C.D. Cal. 2009) (plaintiff must still pursue remaining levels of review even if his lower level grievances were ignored or improperly rejected). Defendants have established that at the time plaintiff filed suit, all available administrative remedies had not been exhausted for the allegations stemming from incidents on January 5, February 3, and April 16, 2010. Therefore, plaintiff's claims as to those incidents are dismissed.

E. Conclusion re Exhaustion

In light of the above, plaintiff may proceed on those claims contained in Grievance HDSP-09-02295, specifically his allegations concerning incidents that took place on December 3, 2009, as well as his claim that his eyeglasses were taken on November 27, 2009, and not returned until March 24, 2010, causing him to suffer "really bad" headaches. Plaintiff's remaining claims, stemming from incidents on November 27, 2009, January 5, 2010, February 3, 2010, and April 16, 2010, are dismissed as unexhausted. Plaintiff's claims against defendant Swart are also dismissed as unexhausted. Defendant Callison will be required to file an answer to the allegations stemming from events on December 3, 2009, as well as plaintiff's allegations concerning the taking of his eyeglasses.

II. Fourteenth Amendment Claims A. Due Process

Defendants contend that plaintiff has failed to state a cognizable due process claim under the Fourteenth Amendment because it is subsumed in plaintiff's Eighth Amendment claim, the primary source of substantive protection to convicted prisoners raising claims of excessive force. Plaintiff argues that his due process claim is cognizable because defendants "punished" plaintiff by painfully slamming his face into a feces-covered sheet and deliberately taking his prescription eyeglasses. (Dkt. No. 57 at 5.)

Plaintiff's claim under the Fourteenth Amendment should be dismissed. The Fourteenth Amendment's Due Process Clause protects a pretrial detainee from punishment prior to an adjudication of guilt in accordance with due process of law. Bell v. Wolfish, 441 U.S. 520, 534-35 (1979). In the instant case, plaintiff was a prisoner, not a pretrial detainee, on the dates in question. Because plaintiff was not a pretrial detainee at the time of the alleged incidents, his claims are analyzed under the Eighth Amendment, not the Fourteenth Amendment. Therefore, plaintiff's due process claims under the Fourteenth Amendment are dismissed. The court will consider plaintiff's allegations under the Eighth Amendment.

B. Equal Protection

Finally, defendants move to dismiss plaintiff's equal protection claim. Plaintiff opposes dismissal, arguing he was treated differently because plaintiff smeared feces on his cell windows.

The Equal Protection Clause of the Fourteenth Amendment commands that "no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (citation omitted). "To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing Washington v. Davis, 426 U.S. 229, 239-40 (1976)).

Plaintiff failed to identify what protected class he is a member of, what other persons are similarly situated, or that there was no rational basis for the difference in treatment. Plaintiff's bare conclusion that he was deprived of equal protection of the law is not sufficient to state a claim. Plaintiff fails to state a cognizable claim against defendants for violation of the Equal Protection Clause of the Fourteenth Amendment, and this claim is also dismissed.

C. Conclusion re Fourteenth Amendment Claims

As noted above, plaintiff's claims under the Fourteenth Amendment are dismissed.

III. Conclusion

In light of the above, this action shall proceed solely as to those claims exhausted through grievance HDSP-09-02295, as set forth above. Defendants' motion to dismiss plaintiff's remaining claims is granted, with the exception of plaintiff's claim concerning the taking of his eyeglasses.

IV. Additional Filings

On November 22, 2010, plaintiff filed a motion for order granting him access to the law library to make copies of documents he states demonstrates that he exhausted his administrative remedies for his claims arising from incidents occurring on March 29, 2010. (Dkt. No. 70.) On December 2, 2010, plaintiff filed similar requests. (Dkt. Nos. 72 & 73.) However, as noted above, plaintiff exhausted these claims after he filed the instant action. Because plaintiff is required to exhaust his administrative remedies prior to filing a federal complaint, plaintiff may not pursue these claims in this action, but must file a new action. Accordingly, plaintiff's motions for law library access to photocopy his paperwork in connection with these claims are denied.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Defendants' September 30, 2010 motion to dismiss is granted in part and denied in part:

a. Plaintiff's claims raised in grievance HDSP-10-00507, arising from incidents occurring on March 29, 2010, are dismissed as unexhausted prior to the filing of this action.

b. Plaintiff's claims raised in grievance HDSP-09-02295, arising from incidents occurring on December 3, 2009, are exhausted.

c. Plaintiff's claims against defendant Swart are unexhausted; defendant Swart is dismissed as a defendant.

d. Plaintiff has exhausted his claim that his eyeglasses were taken and not returned or replaced for four months.

e. Except as noted above, plaintiff's claims stemming from incidents occurring on November 27, 2009, January 5, 2010, February 3, 2010, and April 16, 2010 are unexhausted and are dismissed.

f. Plaintiff's Fourteenth Amendment claims are dismissed.

2. Within twenty-one days from the date of this order, defendant Callison shall answer plaintiff's claims arising from the events of December 3, 2009, as well as plaintiff's allegation concerning the taking of his eyeglasses.

3. Plaintiff's November 22, 2010, and December 2, 2010 filings*fn3 (dkt. nos. 70, 72 & 73) are denied.

bass0539.mtd


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