FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This action is proceeding on claims raised in plaintiff's first amended complaint, filed April 23, 2010, against defendants Warden D.L. Runnels, Correctional Lieutenant K. Clement, Correctional Officer N. Correa, Correctional Officer Coleman, Correctional Officer E. Rausch, Correctional Officer Loiler, Correctional Officer Kingstrom, and Correctional Officer Lamberton. This matter is before the court on defendants' motion to dismiss brought pursuant to Federal Rule Civil Procedure 12(b). Defendants contend that plaintiff failed to exhaust his administrative remedies prior to filing suit, that plaintiff's claim for injunctive relief has already been resolved by the district court and the United States Court of Appeals for the Ninth Circuit, and that plaintiff has failed to state a claim against defendants Runnels and Rausch.
Plaintiff filed this civil rights action on September 26, 2005 raising claims based on events that allegedly occurred at High Desert State Prison ("HDSP"). Defendants moved to dismiss plaintiff's complaint for failure to exhaust administrative remedies prior to suit. In findings and recommendations, this court found that plaintiff's original complaint presented three claims: for harassment and retaliation in response to plaintiff's exercise of his right to seek redress; conspiracy by the defendants to use institutional procedures as a retaliatory method of confiscating plaintiff's property and inciting inmates to harm plaintiff and his cellmate; and defendants' confiscation and destruction of plaintiff's administrative appeals concerning staff misconduct. See Findings and Recommendations filed July 11, 2001, at 13-14. The court further found that the issues which defendants sought to dismiss were unexhausted but that those issues should be deemed allegations supporting plaintiff's underlying claims, rather than separate claims for relief. Id. at 15. The court further found that plaintiff sought only an order protecting him from further harassment and retaliation. Id. at 14. By order filed August 21, 2006, those findings and recommendations were adopted by the assigned district judge.
On May 2, 2007, the defendants filed a motion for summary judgment on the grounds that plaintiff's claims had been rendered moot. Specifically, defendants argued that plaintiff's complaint only sought injunctive relief, and he had since been transferred from HDSP, the prison where the alleged civil rights violations took place, to Folsom State Prison. On December 14, 2007, the undersigned issued findings and recommendations, recommending that the motion for summary judgment be granted. On January 31, 2008, the assigned district judge adopted those findings and recommendations in full and granted defendants' motion for summary judgment. Plaintiff appealed, and on July 28, 2009, the United States Court of Appeals for the Ninth Circuit affirmed in part, vacated in part, and remanded the case back to this court. The court of appeals held that summary judgment had been properly granted on plaintiff's claims for injunctive relief. However, the court of appeals also determined that this court should have construed plaintiff's opposition to defendants' motion for summary judgment and his motion for injunctive relief, both of which had been filed prior to the deadline for filing pretrial motions, as a motion for leave to file an amended complaint to add a separate claim for damages.
Following remand, plaintiff was granted thirty days in which to file an amended complaint specifying the damages he seeks against each defendant. After receiving an extension of time, plaintiff filed his amended complaint on April 23, 2010. Defendants responded to the amended complaint with the instant motion.
I. Failure to Exhaust Administrative Remedies
On October 21, 2005, the court advised plaintiff of the requirements for opposing a motion to dismiss for failure to exhaust administrative remedies pursuant to the unenumerated provisions of Federal Rule of Civil Procedure 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1120
Section 1997e(a) of Title 42 of the United States Code provides:
No 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.
This exhaustion requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001).
Exhaustion must precede the filing of the complaint; compliance with the statute is not achieved by satisfying the exhaustion requirement during the course of an action. Id. at 1200. Defendants have the burden of proving that plaintiff failed to ...