ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is presently housed at Salinas Valley State Prison in Soledad, California. Before the court is defendants' motion to dismiss. Plaintiff opposes the motion.
This action is proceeding on plaintiff's second amended complaint ("SAC") against defendants Baker and Walker, filed July 19, 2010.*fn1 Therein, plaintiff contends that whiel he was housed at California State Prison -- Sacramento ("CSP-Sacramento") on August 9, 2008, he and a fellow inmate, who is not a party to this suit, were conversing and did not hear prison officers call their building number during yard recall. SAC at 5. Slightly tardy to recall and yet in plain view of prison staff, plaintiff approached the line officers who were conducting pat-downs of other inmates housed in their building and was told to wait. Id. at 5-6. After the officers finished the pat-downs, plaintiff claims ten officers, including one female officer, surrounded plaintiff and his fellow inmate on the open yard and ordered them to strip naked, hand over their clothes, squat down and cough. Id. at 6-7. Plaintiff complied with the strip-down. Id. at 7. He claims that the officers had "smirks and smiles" and "did not seem to be looking for weapons." Id. Plaintiff describes the incident as "humiliating, "improper" and "unnecessary" as he was only slightly late for yard recall and showed no security concern to warrant the strip-down. Id.
Following the incident, plaintiff filed a grievance with the prison.*fn2 See SAC, Ex. A. At the first level of review, defendant Baker stated that he was aware of strip searches of inmates tardy to yard recall and informed plaintiff that such searches comply with California Department of Corrections and Rehabilitations ("CDCR") regulations "to maintain the safety [and] security of the institution." Id. at 7. He further stated that he had "witnessed these unclothed body searches for inmates" and found that they "in no way humiliated or embarrassed the inmates involved." Id. at 6-7. Continuing, Baker stated that although plaintiff's situation may have been "a genuine mistake," "[i]t is difficult for staff to determine which inmates are telling the truth and which inmates are attempting to circumvent the rules." Id.
At the second level of review, defendant Walker referred plaintiff to the relevant section of the California Code of Regulations, Title 15 that authorizes body inspections. SAC, Ex. A at 10-11. He then noted the "common practice" of strip searching tardy inmates and determined that plaintiff was not "personally singled out for an unclothed body search but because of [his] late return from yard recall [he] was subjected to one based on the current practice of conducting unclothed body searches on all late returns." Id. at 10-11.
Finally, at the Director's Level, it was found that a strip-down search of an inmate is a prison policy "to prevent the introduction of contraband or other illicit material into any of the institution's housing units by inmates who intentionally failed to report for an unclothed body search prior to entering their housing unit." SAC, Ex. A at 1-2.
This action was initiated on July 29, 2009. In the original complaint, plaintiff challenged the unclothed body searches of inmates tardy to yard recall as violative of his Fourth Amendment rights and contended that the installation of a timed toilet system violated his Eighth Amendment rights. Upon screening the complaint, the undersigned found that plaintiff met the minimal pleadings requirements of Rule 8 of the Federal Rule of Civil Procedure as to the former claim and further found that the latter claim failed to state a claim. See Doc. No. 5.
On November 23, 2009, plaintiff filed a first amended complaint challenging the misuse of the strip search policy to humiliate prisoners and named only Baker and Walker as defendants. The first amended complaint was dismissed with leave to amend for plaintiff's failure to allege that the defendants were aware of the misuse of the strip search policy.
On July 19, 2010, plaintiff filed the operative SAC against Baker, Walker and ten Doe defendants. On February 7, 2011, Baker and Walker filed a motion to dismiss. On February 18, 2011, plaintiff filed an opposition. On March 28, 2011, defendants filed a reply.
STANDARDS FOR A MOTION TO DISMISS
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Although the court previously issued a screening order that expressly stated that plaintiff stated a cognizable claim against defendant, the court finds that this finding does not foreclose defendant's right to bring a motion to dismiss on the same grounds. See Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007) (finding that the screening and dismissal procedure under the Prison Litigation Reform Act "is cumulative of, not a substitute for, any subsequent Rule 12(b)(6) motion that the defendant may choose to bring"). The court will consider the merits of defendant's motion to dismiss.
On December 11, 2009, plaintiff received the notice required by Wyatt v. Terhune, 305 F.3d 1033 (9th Cir. 2002), for opposing a motion to dismiss for failure to exhaust administrative remedies pursuant ...