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Daniel Steve Dixon v. S. Larosa

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


August 30, 2011

DANIEL STEVE DIXON, PLAINTIFF,
v.
S. LAROSA, ET AL.,
DEFENDANTS.

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

ORDER AND FINDINGS AND RECOMMENDATIONS

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. In his first amended complaint, plaintiff names thirteen defendants, and raises various allegations of retaliation allegedly suffered after plaintiff filed a prison grievance on August 23, 2009, concerning incidents that occurred after August 17, 2009, the date plaintiff reported his cellmate had a pet rodent. (Dkt. No. 12.) Plaintiff alleges that his cell was improperly searched by defendant LaRosa on September 16, 2009, plaintiff was subjected to allegedly retaliatory bed moves, transferred between buildings, given incompatible cellmates, and placed in administrative segregation ("ad seg"), allegedly in retaliation for filing administrative appeals. Plaintiff's motion for sanctions, and defendants' motions to dismiss are now before the court.

II. Motion for Sanctions

On July 5, 2011, plaintiff filed a motion for sanctions against defendants based on their failure to timely file their reply. (Dkt. No. 53.) Plaintiff contends that defendants' reply was filed two weeks late, because it was filed two weeks after plaintiff's opposition was filed, and therefore the reply should be disregarded. On July 8, 2011, defendants filed an opposition, stating that counsel inadvertently calendared the deadline for seven court days rather than seven calendar days, and argues that under the court's May 4, 2011 order, the reply was due on or before June 15, 2011, and therefore the June 17, 2011 reply was only two days late. Defendants contend the reply is helpful to the court, and argue that plaintiff suffered no prejudice by the two day delay because no additional briefing is allowed.

The court has the inherent power to impose sanctions when a party has acted in "bad faith, vexatiously, wantonly, or for oppressive reasons." Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980); Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001). While the court's inherent power extends to all litigation abuses, the litigant must have "engaged in bad faith or willful disobedience of a court's order." Chambers v. NASCO, Inc., 501 U.S. 32, 46-47 (1991); Fink, 239 F.3d at 992. A finding of bad faith is warranted where an attorney or party knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent. Rodriguez v. United States, 2008 WL 4070886, at *3 (9th Cir. 2008).

Plaintiff correctly points out various court orders requiring a reply to be filed in seven days. However, this does not address defendants' claim that the delayed filing was the result of an alleged miscalendaring of seven court days rather than seven calendar days, a distinction which can, depending on the time of year, result in a difference of three days.

Moreover, it is not an unreasonable interpretation of this court's May 4, 2011 order to argue that defendants' reply was due seven days after June 8, 2011, rather than seven days after plaintiff actually filed his opposition on June 3, 2011. This construction renders defendants' reply two days late. In addition, the court notes that there was a four day delay between the June 3, 2011 filed date of plaintiff's opposition, and the date it was actually entered on the court's docket on June 7, 2011. (Dkt. No. 50.) Seven days from June 7, 2011, would render defendants' June 17, 2011 reply only three days late.

This court finds that the two or three day delay in filing the reply was not due to defendants' bad faith, and does not prejudice plaintiff in any way. Such a brief delay does not warrant the imposition of sanctions, or the waiver of defendants' reply. Plaintiff's motion for sanctions is denied. The court will consider defendants' reply filed June 17, 2011.

III. Motions to Dismiss - Exhaustion

On March 8, 2011, defendants Knipp, White, Crosby, Martel, Thomason, Grzebyk, Texeira, Foston, Harrington and Keenan filed a motion to dismiss based on plaintiff's alleged failure to exhaust administrative remedies prior to filing the instant action. (Dkt. No. 38-1.) On April 7, 2011, defendant Wilkins moved to dismiss on the same ground. (Dkt. No. 45.) After receiving an extension of time, on June 3, 2011, plaintiff filed a verified opposition. (Dkt. No. 50.) Defendants filed a reply on June 17, 2011. (Dkt. No. 51.) After careful review of the record, this court finds that the motions to dismiss based on plaintiff's failure to exhaust administrative remedies should be granted.

The following is a chronology of events from plaintiff's amended complaint: On August 17, 2009, plaintiff reported that his cellmate DeLeon had a pet rodent. (Dkt. No. 12 at 6.) Subsequently, plaintiff's cell was searched and the rodent removed. This action angered DeLeon, and plaintiff requested a different cellmate. At some time between August 18, 2009, and September 16, 2009, plaintiff was celled with inmate Daniels. On August 23, 2009, plaintiff submitted an appeal concerning double-celling policy. On September 16, 2009, defendant LaRosa searched plaintiff's cell. On September 18, 2009, plaintiff filed a grievance concerning the allegedly retaliatory September 16, 2009 cell search.

On September 27, 2009, plaintiff was moved to Building 4. (Dkt. No. 12 at 18.) On October 2, 2009, plaintiff agreed to move to Building 2. On October 4, 2009, plaintiff's new cellmate was moved to Building 1, and inmate Lopes was moved in with plaintiff. On October 8, 2009, plaintiff and inmate Lopes were moved to Building 3. On October 16, 2009, plaintiff told a correctional officer, "Get . . . Lopes out of here before I hurt him." (Dkt. No. 12 at 17.) On October 19, 2009, plaintiff was placed in ad seg based on plaintiff's verbal threat against his cellmate. On October 22, 2009, plaintiff attended an Institution Classification Committee ("ICC") hearing regarding plaintiff's retention in ad seg. (Dkt. No. 12 at 18-19.) On November 19, 2009, plaintiff appeared before the ICC for a subsequent administrative placement review hearing. (Dkt. No. 12 at 21.)

Specifically, plaintiff alleges five claims for relief in the August 27, 2010 first amended complaint:

1. Defendants LaRosa, Keenan, Grzebyk, Crosby and White engaged in retaliatory conduct against plaintiff: a cell search, bed and building moves, and assigned plaintiff to incompatible cellmates, advancing no legitimate penological interests, in violation of plaintiff's First and Eighth Amendment rights;

2. Defendants Gamez, White and Harrington knowingly failed to respond to plaintiff's request for help, and permitted their subordinate correctional officers to violate plaintiff's constitutional rights, in violation of plaintiff's First and Eighth Amendment rights;

3. Defendants White and Harrington violated plaintiff's First, Eighth and Fourteenth Amendment rights by placing plaintiff in ad seg;

4. Defendants Harrington, Thomason, Knipp, Texeira, Martel, Wilkins and Foston failed to apply rules, policies and regulations to protect plaintiff's due process rights, in violation of plaintiff's Eighth Amendment rights; and

5. Plaintiff also raises a state law claim alleging defendants failed to follow CDCR rules and regulations.

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. Id., 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. Analysis re Exhaustion

The instant complaint was filed on June 11, 2010. Therefore, plaintiff was required to exhaust his administrative remedies as to the instant claims on or before June 11, 2010. Booth, 532 U.S. at 741. Defendants provided the declaration of D. Foston, Chief of the Inmate Appeals Branch, who provided a log of any appeals by plaintiff that were "accepted and/or received and screened out at the Directors' level between January 1, 1997, and January 4, 2011." (Dkt. No. 38-6 at 2-7.) Four of the appeals were exhausted through the Director's Level of Review, and only two of those appeals are relevant to the allegations herein.*fn1

1. Log No. MCSP-09-01626

Plaintiff filed grievance MCSP-09-01626 on August 23, 2009. (Dkt. No. 38-2 at 5.) Plaintiff complained that his cellmate had a rodent, and sought a new cellmate. (Dkt. No. 38-2 at 5.) Plaintiff reiterated key points concerning double-celling and integrated housing, focusing on language suggesting inmates have an opportunity to express an opinion as to their assigned cellmates. (Dkt. No. 4*fn2 at 5.) Plaintiff requested the following action:

Per Penal Code § 2079, all M.C.S.P. prison officials follow all CDCR directives, policies and procedures governing doublecelling and integrated inmate housing. Issue an updated memorandum consist[ent] with these stated policies and procedures, listed here. NOT retaliate against this writer in any way, e.g., not changing his cell.

(Id.) On the Formal Level of the appeal (Section D), signed September 7, 2009, plaintiff reiterated that he wanted to maintain the action requested, "that is, inmates be permitted to participate in cell[mate] selection." (Id.)*fn3

In the CDC 602 Response, dated September 29, 2009, prison officials note that plaintiff's written appeal "did not address a specific issue." (Dkt. No. 4 at 7.) During the interview, however, plaintiff clarified that "Mule Creek is not following policy and procedure relevant to the integrated housing procedure." (Id.) Plaintiff requested that "all CDCR directives, policies and procedures governing double-celling and integrated inmate housing be followed," that "a memorandum consistent with these policies and procedures be put out to the inmate population," and "that no retaliation be taken against [plaintiff] for this appeal." (Id.) After explaining how housing procedures work, plaintiff's requests that he be allowed to pick who he cells with, and that a memo be issued was denied, and plaintiff's request that he not be retaliated against was granted. (Dkt. No. 7-8.)

On October 10, 2009, plaintiff requested a second level review, stating that the September 29, 2009 response did not address a certain section of the housing code. (Dkt. No. 4 at 4.) Plaintiff added, "Also, see attach[ed] declaration detailing the retaliatory methods used against me by Building One correctional officers." (Id.) Plaintiff's October 10, 2009 declaration addressed various events from August 23, 2009, through October 9, 2009. (Dkt. No. 4 at 11-18.)

In the second level decision, Warden Martel stated:

Although the [plaintiff] has attached an eight page "declaration," outlining what [plaintiff] considers retaliatory bed moves against him, [plaintiff] has provided no evidence to substantiate his allegations that the bed moves he notes are in retaliation to his submission of this appeal. The [plaintiff] is advised per CCR 3084.2 a limit of one continuation page, front and back, may be attached to the appeal to describe the problem and action requested. The [plaintiff] has failed to submit any additional or new information at the Second Level of Review to warrant modification of the First Level decision. Therefore, no relief is warranted at the Second Level.

(Dkt. No. 38-2 at 8.) Plaintiff's appeal was denied. (Id.)

On November 25, 2009, plaintiff sought a Director's Level Review, stating: This appeal is more about the double-celling procedures and/or improper practices than "[I]ntegrated Housing Assignments."

Reference to "integrated housing" procedures cited herein this appeal is strictly to show that inmates are suppose[d] to have input (or "participate") in cellmate selection. (Dkt. No. 38-2 at 6.) In his attachment, plaintiff complained that the second level reviewer found no evidence to substantiate plaintiff's claims that bed moves were done in retaliation, and referenced plaintiff's eight page declaration reciting additional retaliatory actions. (Dkt. No. 4 at 6.) Plaintiff added: "Note: The facts disclosed in the declaration are also pending in another 602 appeal, specifically regarding retaliation, . . ." (Id.) Plaintiff further argues that the prison officials who ruled on plaintiff's first and second levels of review were not impartial. (Id.)

The Director's Level Decision found plaintiff's appeal issue was appropriately addressed at the previous levels of review, and did not address the previously-provided declaration, or issue a ruling on plaintiff's claims of retaliation. (Dkt. No. 38-2 at 3-4.)

In Woodford, the Supreme Court held that, in order to exhaust administrative remedies, the prisoner must comply with all of the prison system's procedural rules so that the agency addresses the issues on the merits. Id., 548 U.S. at 89-96. Thus, exhaustion requires compliance with "deadlines and other critical procedural rules." Id. at 90. Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance which affords prison officials a full and fair opportunity to address the prisoner's claims. See id. at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the quantity of prisoner suits "because some prisoners are successful in the administrative process, and others are persuaded by the proceedings not to file an action in federal court." Id. at 94.

A review of defendants' evidence reveals that, while plaintiff filed grievance MCSP-09-01626 concerning double-celling, including plaintiff's specific request that he be allowed to choose his own cellmate, this grievance did not complain about subsequent alleged retaliatory conduct. Specifically, plaintiff complained that prison officials had not followed the correct procedure with respect to double-celling or integrated housing. This grievance, signed August 23, 2009, challenged an action taken prior to the subsequent allegedly retaliatory acts. Indeed, plaintiff alleges it was the filing of grievance MCSP-09-01626 that caused defendants to retaliate. Therefore, this grievance cannot serve to exhaust plaintiff's subsequent claims that he suffered retaliatory acts based on the filing of this grievance because it precedes the alleged retaliatory acts. Plaintiff's inclusion of a request that prison officials not retaliate against him is insufficient to put prison officials on notice of plaintiff's subsequent claim that defendants allegedly did retaliate against plaintiff. Plaintiff's initial grievance MCSP-09-01626 regarding double-celling and integrated housing policy did not substantively provide prison officials a full and fair opportunity to address plaintiff's retaliation claims. Moreover, it appears plaintiff conceded he was pursuing his retaliation claim in a separate appeal by stating: "The facts disclosed in the declaration are also pending in another 602 appeal, specifically regarding retaliation." (Dkt. No. 4 at 6.)

In addition, plaintiff's efforts to interject his retaliation claims at the second level of review by appending the October 10, 2009 declaration raising new claims*fn4 are unavailing. Section 3084.5(b) states that "[a]ll appeals shall be initially filed and screened at the first level."

Cal. Code Regs. tit. 15, § 3084.5(b). Moreover, as noted in the second level decision, plaintiff's attempted filing exceeded the page limit set forth in § 3084.2. Id. This decision gave plaintiff notice that his eight page declaration raising new claims was improperly filed. Finally, § 3084.2(b)(1) only permitted the attachment of supporting documents which are "necessary to clarify the appeal":

Attachments shall not raise new issues, but shall only serve to clarify the present appeal issue and action(s) requested . . . New issues raised in the supporting documents shall not be addressed and any decision rendered will pertain only to the present appeal issue and requested action(s).

Cal. Code Regs. tit. 15, § 3084.2(b)(1). Plaintiff failed to comply with the prison's procedural rules; therefore, plaintiff's attempt to add new claims during the exhaustion of a different appeal cannot serve to exhaust plaintiff's alleged new retaliation claims. See Woodford, 548 U.S. at 90-91; See Sapp v. Kimbrell, 623 F.3d 813, 825 (9th Cir. 2010) (prisoner's claim for medical care of an eye condition was not exhausted because the prisoner raised the issue for the first time in a second-level appeal of an earlier grievance that only complained about medical care of a skin condition). 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) ("Plaintiff has not directed the Court to any requirement that the Director of Inmate Appeals assist Plaintiff in managing his grievances.").*fn5

Here, plaintiff informed prison officials that he was pursuing his retaliation claim in another grievance, thereby continued to focus this grievance as challenging the double-celling procedures, and alleges it was the filing of grievance MCSP-09-01626 that allegedly caused defendants to retaliate. Therefore, this grievance cannot serve to exhaust plaintiff's subsequent claims that he suffered retaliatory acts based on the filing of this grievance because it preceded the alleged retaliatory acts.

For all of the above reasons, grievance MCSP-09-01626 does not exhaust any of plaintiff's alleged retaliation claims, or any claims arising after August 23, 2009.

2. Log No. MCSP-09-02012

Plaintiff filed grievance MCSP-09-02012 on September 18, 2009, complaining that defendant LaRosa retaliated against plaintiff for filing grievance MCSP-09-01626, by searching and allegedly "trashing" plaintiff's cell on September 16, 2009. (Dkt. No. 38-3 at 4.) Plaintiff requested the following action:

That C/O LaRosa or any other correctional staff desist in any further retaliation or the appearance of retaliation against me, be it unreasonable cell and/or body searches, unwanted cell moves, or any other unreasonable action against me per Title 15, § 3084.7(d) and § 3287(a)(1) & (2). (Dkt. No. 38-3 at 4.) On September 22, 2009, an informal response issued. The informal response identified plaintiff's claim as alleging defendant LaRosa's September 16, 2009 cell search was excessive and unreasonable when compared to the three prior cell searches. (Dkt. No. 38-3 at 22.) The entirety of this appeal response focused on plaintiff's challenge to the September 16, 2009 cell search and the relief sought in grievance MCSP-09-01626. (Dkt. No. 38-3 at 22-26.) The only reference to bed moves was the denial of plaintiff's request to be exempt from unwanted bed moves. (Dkt. No. 38-3 at 26.) On October 10, 2009, plaintiff sought formal level review, claiming the informal response "overlooked the chronological order of events that took place, which formed the retaliation claim, and now compounded by more retaliation, should not be negated." (Dkt. No. 38-3 at 9.) Plaintiff attached his declaration*fn6 and a second declaration from witness inmate Viruegas (id. at 16.)

In the December 9, 2009 appeal response, the appeal issue was identified as challenging the September 16, 2009 cell search as retaliatory and alleging defendant LaRosa trashed plaintiff's cell. (Dkt. No. 38-3 at 41.) Plaintiff's request to have defendant LaRosa or any other correctional staff "desist in any further retaliation or the appearance of retaliation against [plaintiff], be it unreasonable cell and/or body searches, unwanted cell moves, or any other unreasonable action against [plaintiff] per Title 15 [was] granted." (Id.) The reviewing officers found that plaintiff failed to show that any cell search was a result of retaliation; that the searches were conducted over a reasonable period and the items confiscated were contraband. (Id.) The reviewing officers also stated that plaintiff had "not shown that any bed moves [plaintiff] incurred were the result of retaliation." (Dkt. No. 38-3 at 42.)

Plaintiff expressed dissatisfaction with the response, stating:

Unfortunately, my retaliation claim extends beyond C/O LaRosa but involves several correctional staff. See attached November 3, 2009 declaration adding: (1) Correction Officers Crosby and Grzebyk, Corr. Sergeants Gamez and White and Correctional Captain Harrington, for the specific acts stated in my declaration . . . . (Dkt. No. 4 at 64.) The appended declaration, dated December 18, 2009, reiterated plaintiff's claim that the cell search was performed in retaliation for plaintiff's double-celling grievance, and discussed plaintiff's desire to be assigned a compatible cellmate, plaintiff's "unjust" removal from Building 1, and plaintiff's unreasonable placement in ad seg, which plaintiff alleged were retaliatory acts. (Dkt. No. 4 at 69.)

In the January 14, 2010 second level response, Warden Martel identified plaintiff's appeal issue as plaintiff's claim that his cell was trashed during a cell search on September 16, 2009, and that his cell was searched frequently. (Dkt. No. 38-3 at 7.) Warden Martel found that the first level review appropriately addressed plaintiff's claim, and confirmed that the items confiscated were appropriately confiscated as unauthorized property. (Id. at 8.) Warden Martel also found that plaintiff failed to support his allegation that defendant LaRosa acted inappropriately or that he or any other correctional staff acted in an unprofessional manner. (Id.) The appeal was granted in part based on CCR § 3084.1(d), "No reprisal shall be taken against an inmate or parolee for filing an appeal" (Dkt. No. 38-3 at 8.)

Grievance MCSP-09-02012 was exhausted at the Director's Level of review in an undated denial. (Dkt. No. 38-3 at 2-3.) The Inmate Appeals Branch found that the September 16, 2009 cell search was not unreasonable, and that plaintiff would "not be exempt from cell and/or body searches, cell moves, or any other action determined to be necessary to ensure the security of the institution." (Dkt. No. 38-3 at 3.) The Inmate Appeals Branch noted that:

The appellant 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. 38-3 at 3.)

For purposes of the PLRA's exhaustion requirement, "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) (internal quotation marks omitted).

A grievance need not include legal terminology or legal theories unless they are in some way needed to prove notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation.

Id. Ultimately, a grievance must "provide enough information . . . to allow prison officials to take appropriate responsive measures." Id., 557 F.3d at 1121 (internal quotation marks omitted).

Here, the focus of grievance MCSP-09-02012 was plaintiff's claim that defendant LaRosa's September 16, 2009 search of plaintiff's cell was excessive, unreasonable and allegedly in retaliation for plaintiff's grievance regarding double-celling. Indeed, plaintiff's attachment is entitled, "Cell Trashed During Improperly Frequent Cell Search." (Dkt. No. 38-3 at 10.) There is no indication that there were subsequent retaliatory actions by other correctional officers such as excessively subjecting plaintiff to bed moves or placing him in ad seg, or that plaintiff was alleging ongoing retaliatory acts. See Masterson v. Campbell, 2007 WL 2536934, at *12 (E. D. Cal. Aug. 31, 2007) (in one initial administrative grievance, plaintiff described a prison officials' decision was "possibly part of a pattern of retaliation imposed on [him] for filing a staff complaint for sexual harassment/misconduct," which was sufficient to exhaust retaliation claim.) In addition, the alleged bed moves could not have been included in grievance MCSP-09-02012, which plaintiff signed on September 18, 2009, because the first allegedly retaliatory bed move was made on September 27, 2009, after grievance MCSP-09-02012 was submitted. Also, plaintiff was not placed in ad seg until October 19, 2009.

Moreover, as noted above, prison policies require plaintiff to submit his grievances to the first level of review; plaintiff cannot raise new claims during the appeals process. Cal. Code Regs tit. 15, § 3084.2(b)(1). Plaintiff's response to the first level review demonstrates that plaintiff was attempting to raise new claims during the appeal process. (Dkt. No. 4 at 64.) Although plaintiff's new claims also alleged retaliation, the new allegations differed in time, type and responsible parties. Plaintiff's initial grievance solely addressed the September 16, 2009 cell search by defendant LaRosa, and required comparison to plaintiff's prior cell searches. Plaintiff later contended that he suffered allegedly retaliatory bed moves and a placement in ad seg by other correctional officers.*fn7 Thus, plaintiff's initial grievance could not put prison officials on notice of the allegedly retaliatory bed moves or placement in ad seg, because the initial grievance only addressed the allegedly retaliatory cell search by defendant LaRosa on September 16, 2009. See Sapp, 623 F.3d at 825 (issue raised for the first time in a second-level appeal of an earlier grievance cannot exhaust different claim).

The Director's Level review noted that plaintiff's attempt to add new claims was inappropriate and declined to address them. Sapp, 623 F.3d at 825. Thus, plaintiff's new claims were properly screened out as plaintiff failed to include them at the first level of his appeal. Only the September 16, 2009 cell search was addressed in the Director's Level Decision. Therefore, neither plaintiff's new retaliation claims nor plaintiff's claims concerning conduct occurring after September 18, 2009, were exhausted by grievance MCSP-09-02012.

3. March 28, 2010 Appeal

On October 19, 2009, plaintiff signed an ad seg placement notice. (Dkt. No. 4 at 93.) The notice states that plaintiff was placed in ad seg for allegedly threatening plaintiff's cellmate. (Id.) Plaintiff claims he stated "Get . . . Lopes out of here before I hurt him." (Dkt. No. 12 at 17.) Plaintiff appeared before the ICC on October 22, 2009, and his ad seg commitment was extended. (Dkt. No. 12 at 18.) On November 4, 2009, plaintiff appeared before Lt. Baroga, Senior Hearing Officer, to hear the CDC-115 issued based on plaintiff's verbal threat. (Dkt. No. 12 at 19.) Plaintiff was assessed thirty days' loss of behavioral credit, thirty days' loss of yard privileges, and thirty days' loss of telephone privileges. (Dkt. No. 12 at 20.) On November 19, 2009, plaintiff appeared for another ICC hearing. (Dkt. No. 12 at 21.)

On March 28, 2010, plaintiff filed an appeal, in which he challenged certain details of the November 19, 2009 CDC-128G Chrono. (Dkt. No. 4 at 114.) Plaintiff stated he received this chrono on or about March 25, 2010. (Id.) Plaintiff contended that the full committee recommended that plaintiff be put back on the support services and PIA waiting list, but that M. Eloza informed plaintiff that he had only been put back on the support services waiting list. (Id.) Plaintiff also disputed the committee's reference to plaintiff's "ongoing disciplinary history." (Id. at 114-15) In addition, plaintiff complained that the punishment assessed was unjust. (Id. at 115.) Plaintiff requested the following action:

Per Title 15, § 3376(d)(2)(A), correct the inaccuracies, which entail the required "mitigation" needed to reassess punishment, and would, respectfully, return me to A1/A status and place me at the top of the PIA waiting list; to return to job assignment where 101s clearly reflect above average work participation nearly ten years on same job.

(Dkt. No. 4 at 114.)

On April 1, 2010, plaintiff wrote a letter to the Inmate Appeals Branch challenging the rejection of plaintiff's March 28, 2010 appeal as untimely. (Dkt. No. 4 at 110.) Plaintiff confirmed that he had received the classification chronos dated November 4, 2009, and December 10, 2009, but did not receive the third chrono, dated November 19, 2009, until shortly after M. Eloza, Correctional Counselor I, signed the form on March 25, 2010. (Id.)

On May 10, 2010, the Chief of the Inmate Appeals Branch notified plaintiff that plaintiff's appeal IAB# 0920176 custody/class "was rejected, withdrawn or cancelled at the institution level. If you disagree with that decision, contact the Appeals Coordinator. You must comply with instructions from that office." (Dkt. No. 4 at 109.)

In California, the date for filing a grievance is fifteen working days from the date the administrative decision or action being complained of is taken. See Cal. Code Regs. tit. 15, § 3084.6(c). Thus, a prisoner cannot satisfy the exhaustion requirement "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Woodford, 548 U.S. at 83-84.

Plaintiff was aware of his placement in ad seg on October 19, 2009, and was present during the November 4, 2009 hearing where the punishment was imposed, and was present at the ICC hearing on November 19, 2009. Thus, plaintiff's March 28, 2010 appeal was untimely as it was not filed fifteen working days after any of these events, and was therefore properly screened out.

Admittedly, whether or not plaintiff's March 28, 2010 appeal was timely, a liberal reading of the appeal reflects that plaintiff's main concern was getting back on the PIA waiting list so that he could get back to work. This court is aware that a grievance "need not contain every fact necessary to prove each element of an eventual legal claim." Griffin, 557 F.3d at 1120. "The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Id. (citation omitted). Here, however, the genesis of plaintiff's appeal was plaintiff asking M. Eloza to find out where plaintiff was on the PIA waiting list. When plaintiff found out he wasn't on the list, he filed this appeal. This appeal does not mention retaliation, or challenge plaintiff's placement in ad seg based on alleged retaliatory conduct claimed in the instant action. Rather, the appeal seeks to correct "inaccuracies" in the chrono and to get plaintiff back on the PIA waiting list. Plaintiff does not allege that it was these inaccuracies that demonstrate retaliation. The instant complaint does not allege retaliation based on defendants' failure to put plaintiff on the PIA waiting list, or the alleged misstatement of plaintiff's "ongoing disciplinary history." Rather, plaintiff claims that it was his placement, and lengthy retention, in ad seg, and perhaps the way he was treated during the ad seg placement hearing, that demonstrates retaliation. Therefore, this appeal, even if timely brought, could not exhaust the instant retaliation claims.

4. Other Efforts to Exhaust

On September 21, 2009, plaintiff wrote a letter to Internal Affairs identified as "RE: Staff Complaint/Retaliation." (Dkt. No. 4 at 89.) Plaintiff stated that he was sending a copy of his CDCR-602 Inmate Appeal "[b]ased on the inmate appeals being whitewashed, without proper investigation." (Id.) Plaintiff did not provide an appeal number or description of the appeal. The Office of Internal Affairs forwarded plaintiff's letter to Chief Deputy Warden Duncan Fallon, who wrote plaintiff on October 8, 2009, and listed the various options that were available to resolve plaintiff's issue. (Dkt. No. 4 at 90.)

On October 26, 2009, plaintiff wrote a letter to Internal Affairs "because of being retained in" ad seg. (Dkt. No. 12 at 19.) Plaintiff recounted the events of the quick October 22, 2009 ICC hearing, and argued his placement in ad seg was "highly suspect and extremely excessive." (Dkt. No. 4 at 97.) Plaintiff also mentioned his appeals concerning double-celling and the alleged retaliatory cell search by defendant LaRosa, as well as his September 21, 2009 letter to Internal Affairs. (Id.) Plaintiff sought an impartial review of his situation. (Id.)

Finally, plaintiff provided a copy of Warden Martel's December 22, 2009 memorandum regarding "Determination of Staff Complaint." (Dkt. No. 4 at 100.) Warden Martel reviewed plaintiff's December 18, 2009 appeal and determined that the "appeal does not meet the requirement for assignment as a staff complaint." (Id.) It appears that this determination was rendered in connection with plaintiff's grievance MCSP 09-02012,*fn8 as Warden Martel refers to it in the second level appeal response issued January 14, 2010. (Dkt. No. 4 at 107.) Warden Martel stated that because the appeal issue did not meet the criteria for processing as a staff complaint, "a confidential fact finding inquiry was not conducted." (Id.)

Letters to Internal Affairs do not demonstrate exhaustion of administrative remedies under the PLRA. See Woodford, 548 U.S. at 91, 93 (exhaustion under the PLRA requires "compliance with an agency's deadlines and other critical procedural rules"); Wilson v. Wann, 2008 WL 4166886, at *2 (E.D. Cal. Sept. 8, 2008) (letters to Internal Affairs and warden were insufficient to show exhaustion); see also Lees v. Felker, 2009 WL 2824862, at *5 (E.D. Cal. Sept. 1, 2009) (letter to warden is not an alternative method to the inmate grievance process for exhausting administrative remedies); Panaro v. City Of North Las Vegas, 432 F.3d 949, 954 (9th Cir. 2005) (participation in internal affairs investigation did not exhaust). Therefore, plaintiff's letters to Internal Affairs do not exhaust plaintiff's claims herein.

The filing of a staff complaint can present a closer question. In certain circumstances the regulations make it impossible for the inmate to pursue a grievance through the entire grievance process. See Brown v. Valoff, 422 F.3d at 939 n.11. Where a claim contained in an inmate's grievance is characterized by prison officials as a "staff complaint," and processed through a separate confidential process, prison officials lose any authority to act on the subject of the grievance. See id. at 937 (citing Booth, 532 U.S. at 736 n.4). Thus, the claim is exhausted when it is characterized as a "staff complaint." See id. at 940.

Here, however, plaintiff's December 18, 2009 appeal was not characterized by prison officials as a staff complaint. Rather, prison officials determined the appeal was not a staff complaint. Because the appeal was not treated as a staff complaint, no separate confidential process ensued, and prison officials did not lose the authority to act on plaintiff's appeal. Thus, plaintiff is not entitled to a finding of exhaustion based on the December 22, 2009 memorandum.

5. Conclusion

The purpose of the prison appeals process is to give prison officials notice of the problem and an opportunity to correct it, as well as to create a factual record of the events in question. Irvin, 161 F.Supp.2d at 1135. An inmate grievance does not exhaust issues not fairly set forth in the grievance. Morton v. Hall, 599 F.3d 942, 945-46 (9th Cir. 2010).*fn9 The only claim plaintiff fairly exhausted prior to filing the instant action is plaintiff's claim that defendant LaRosa allegedly retaliated against plaintiff by "trashing" plaintiff's cell during a cell search on September 16, 2009, and that defendant Keenan came to plaintiff's cell after the cell search. Plaintiff did not fairly grieve his claims that certain prison employees subjected plaintiff to numerous bed moves, allegedly in retaliation for plaintiff's double-celling grievance, or that plaintiff was given incompatible cellmates, or that they placed and retained plaintiff in ad seg, allegedly in retaliation. Any defendants named based on their supervisory role in connection with these unexhausted claims, even if the claims were cognizable, are therefore also unexhausted. Accordingly, plaintiff's claims against defendants Knipp, White, Crosby, Martel, Thomason, Grzebyk, Texeira, Foston, Harrington, Keenan, and Wilkins should be dismissed without prejudice based on plaintiff's failure to exhaust administrative remedies prior to plaintiff filing in federal court. Booth, 532 U.S. at 741.

IV. Failure to State a Civil Rights Claim A. Motion to Dismiss

Defendants also move to dismiss plaintiff's claims against all of the defendants, except defendants LaRosa and Gamez,*fn10 arguing that the allegations fail to state a cognizable claim under 42 U.S.C. § 1983. The court need not address those defendants for whom plaintiff failed to first exhaust his administrative remedies. The remaining defendants and claims will be addressed seriatim.

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 Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). 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 (citations omitted).

A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

i. Cell Search Allegations as to Defendant Keenan

Plaintiff named defendant Keenan in connection with plaintiff's cell search claim against defendant LaRosa. Defendants argue that plaintiff failed to allege any facts linking defendant Kennan to the allegedly retaliatory cell search. (Dkt. No. 38 at 6.) Plaintiff argues that he included detailed facts concerning Keenan's involvement in plaintiff's September 18, 2009 appeal. Plaintiff states that defendant Keenan came by the cell after the cell search with a cell search slip and asked plaintiff's roommate about certain tennis shoes that were confiscated. (Dkt. No. 50 at 16.) Plaintiff reiterates the facts included on the attachment to grievance MCSP-09-02012, concerning actions defendant Keenan took after the cell search. (Id., Dkt. No. 4 at 65-66.) Plaintiff argues that although he did not provide a detailed account of defendant Keenan's involvement with defendant LaRosa on the cell search, the exhibits appended to his grievance provide a broader picture of the issues in question. (Dkt. No. 50 at 17.) Plaintiff contends that defendant Keenan's "statement suggest that he was inside the cell with LaRosa." (Dkt. No. 50 at 17.) Defendants did not address this issue in their reply.

In the prison context, allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "[A] viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). An allegation of retaliation against a prisoner's First Amendment right to file a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003).

In his first claim for relief, plaintiff states that:

Defendants LaRosa and Keenan [FN 10], individually and jointly, conspired together to trash plaintiff's cell and confiscate allotable items as harassment and punishment for exercising his First Amendment right to file a prison grievance.

[FN 10] Before the 602 was filed against Building #1 officers for improper inmate housing assignment practices, Keenan searched plaintiff's cell and left it as he found it, without confiscating anything; a few days before LaRosa's search. 2nd Watch Bldg. #1 officers clearly conveyed information of the 602 to 3rd Watch Bldg. #1 officers, which evoked plaintiff's cell being trashed. The second 602 caused plaintiff to be re-housed to another building and another cell on three different occasions. (Dkt. No. 12 at 25.) The sole paragraph plaintiff recites in support of this cell search claim as to defendant Keenan states:

29. On September 16, 2009, both Third Watch Building #1 floor officers Defendants S. LaRosa and J. Keenan were working the evening plaintiff's cell was trashed. Defendant Keenan had previously searched plaintiff's cell the week before on September 10, 2009 and nothing was confiscated. On August 8, 2009, defendant LaRosa had searched plaintiff's cell and confiscated, rightfully so, cardboard. On September 16, 2009, however, defendant LaRosa had searched plaintiff's cell and confiscated not only what he deemed contraband but allowable items as well, such as cleaning supplies. Plaintiff had the very same items when both Defendants LaRosa and Keenan searched his cell on August 8, 2009 and September 10, 2009, which neither officer/defendant confiscated.

(Dkt. No. 12 at 9.) In the grievance related to the September 16, 2009 cell search, plaintiff states:

Once we were inside the cell on 9/16/09 and began straightening out the mess created by C/O LaRosa, C/O Keenan brought a cell search slip to the door. He then asked, "Daniels, what do you want done with the tennis [shoes] confiscated from your cell?" Daniels said, "Send them home." C/O Keenan further asked, "Do you have any money on the books?" Daniels replied, "I'll call my people and have some sent." C/O Keenan said, "You need money on your books now." [Plaintiff] intervened by saying, "He has 14-days to get money on his books for mail-out of property." C/O Keenan then stated, "Daniels, if you want the other pair back, you must turn in the ones in the cell." [Daniels] had no other tennis [shoes] in the cell. The tennis [shoes] [Keenan] referred to belonged to [plaintiff], which is on my property card. C/O Keenan then walked away.

(Dkt. No. 4 at 65.)

Plaintiff's allegations are insufficient to state a cognizable civil rights claim against defendant Keenan. The fact that defendant Keenan was working on the same evening as defendant LaRosa, or that defendant Keenan previously searched plaintiff's cell and confiscated nothing in the prior cell search, do not demonstrate a constitutional violation. Plaintiff identified no specific fact suggesting that defendant Keenan was involved in the cell search, was aware of grievance MCSP-09-01626, confiscated the tennis shoes, or that defendant Keenan took some adverse action against plaintiff. None of the facts concerning defendant Keenan's visit to the cell after the cell search can be construed as adverse to plaintiff or suggest that Keenan's actions did not advance a legitimate penological goal. Moreover, plaintiff failed to provide any additional factual information as to Keenan's alleged involvement prior to the cell search or with defendant LaRosa in the opposition to the motion to dismiss.

It appears that plaintiff believes that some statement defendant Keenan made at plaintiff's cell after the cell search was performed by defendant LaRosa "suggests" defendant Keenan was "inside the cell with LaRosa." However, plaintiff failed to identify which statement made by defendant Keenan suggests Keenan was inside the cell with LaRosa and why plaintiff believes that statement suggests defendant Keenan's presence.

After carefully reviewing the amended complaint and the exhibits provided by plaintiff, the undersigned concludes that plaintiff failed to state a cognizable civil rights claim against defendant Keenan based on plaintiff's allegation that defendant LaRosa searched plaintiff's cell on September 16, 2009, allegedly in retaliation for plaintiff filing grievance MCSP-09-01626. Plaintiff's cell search claim against defendant Keenan should be dismissed. In an abundance of caution, plaintiff's cell search claim against defendant Keenan is dismissed without prejudice to plaintiff filing a motion to amend, accompanied by a proposed second amended complaint, if plaintiff can allege sufficient facts to demonstrate that defendant Keenan had a role in the September 16, 2009 cell search, and that defendant Keenan's actions were allegedly taken in retaliation for plaintiff filing the double-celling grievance.

In addition, plaintiff is hereby informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement exists because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in a second amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. If plaintiff seeks leave to amend, plaintiff shall also include his retaliation claim against defendant LaRosa in the proposed second amended complaint.

ii. Role in Inmate Grievance Process

To the extent plaintiff alleges defendants Foston, Knipp and Thomason violated plaintiff's civil rights based on their role in the inmate grievance process, such claim is unavailing. Prisoners have no stand-alone due process rights related to the administrative grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling inmates to a specific grievance process). Put another way, prison officials are not required under federal law to process inmate grievances in a specific way or to respond to them in a favorable manner. Because there is no right to any particular grievance process, plaintiff cannot state a cognizable civil rights claim for a violation of his due process rights based on allegations that prison officials ignored or failed to properly process grievances. See, e.g., Wright v. Shannon, 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff's allegations that prison officials denied or ignored his inmate appeals failed to state a cognizable claim under the First Amendment); Walker v. Vazquez, 2009 WL 5088788, at *6-7 (E.D. Cal. Dec.17, 2009) (plaintiff's allegations that prison officials failed to timely process his inmate appeals failed to a state cognizable under the Fourteenth Amendment); Towner v. Knowles, 2009 WL 4281999, at *2 (E.D. Cal. Nov. 20, 2009) (plaintiff's allegations that prison officials screened out his inmate appeals without any basis failed to indicate a deprivation of federal rights); Williams v. Cate, 2009 WL 3789597, at *6 (E.D. Cal. Nov. 10, 2009) ("Plaintiff has no protected liberty interest in the vindication of his administrative claims."). Therefore, plaintiff's due process claims against defendants Foston, Knipp and Thomason should be dismissed for failure to state a cognizable civil rights claim.

iii. Eighth Amendment Claim

To the extent that plaintiff attempts to raise an Eighth Amendment challenge regarding the September 16, 2009 cell search, his claim fails. In Vigliotto v. Terry, 873 F.2d 1201 (9th Cir. 1989), an inmate brought a § 1983 action alleging that prison officials had violated his Eighth amendment rights by conducting several harassing searches, one of which involved the confiscation of legal materials. Id. The district court granted summary judgment to the prison officials. Id. The Ninth Circuit cited Hudson v. Palmer, 468 U.S. 517 (1982), for the proposition that "[t]he Eighth Amendment protects prisoners from searches conducted only for 'calculated harassment.'" Vigliotto, 873 F.2d at 1203. However, the Ninth Circuit affirmed the district court noting that only one search could be substantiated, and that a "single incident is insufficient to satisfy Whitley [v. Albers, 475 U.S. 312 (1986)]." Id. Here, plaintiff claims that the September 16, 2009 cell search was allegedly performed in retaliation. This allegation is insufficient to state a cognizable civil rights claim under the Eighth Amendment. Thus, plaintiff's Eighth Amendment challenge should also be denied.

iv. Failure to Follow State Prison Regulations

In plaintiff's fourth and fifth claims for relief, plaintiff alleges defendants Harrington, Thomason, Knipp, Texeira, Martel, Wilkins and Foston failed to apply rules, policies and regulations to protect plaintiff's due process rights, in violation of plaintiff's Eighth*fn11

Amendment rights; and raises a supplemental state law claim alleging that defendants failed to follow CDCR rules and regulations. Defendants contend that plaintiff failed to state a cognizable claim under any legal theory in connection with plaintiff's claim that defendants failed to follow state prison regulations.

The Fourteenth Amendment provides that no state shall deprive a person of life, liberty, or property without due process of law. These procedural guarantees apply only when a constitutionally-protected liberty or property interest is at stake. Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972) (the Fourteenth Amendment's Due Process Clause does not trigger the need for procedural protections in every instance involving the state's deprivation of an individual's liberty, but only when there is a cognizable liberty interest at stake), overruled in part on other grounds by Paul v. Davis, 424 U.S. 693 (1976). Protected liberty interests arise from the Fourteenth Amendment's Due Process Clause itself, or from state laws or regulations deemed to have created a liberty interest cognizable as a civil right. Meachum v. Fano, 427 U.S. 215, 224-27 (1976).

Although plaintiff stated a cognizable retaliation claim based on the First Amendment, the Fourteenth Amendment does not provide a legal basis for a retaliation claim. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (retaliatory actions taken against a prisoner for exercising his right to file grievances violates the First Amendment); See also Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (retaliation cases in the Ninth Circuit "fall within the 'other protection[s] from arbitrary state action' which the [Supreme] Court appears to envision, because they are based upon protection of the prisoner's First Amendment rights, and not their Due Process rights."); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003) (Fourteenth Amendment does not provide a legal theory under which a retaliation claim could be brought), abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 217 (2007). Also, it is well-established that inmates do not have any Fourth Amendment claim with respect to cell searches. Hudson, 468 U.S. at 525-26 ("society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.")

Moreover, state regulations give rise to a liberty interest protected by the Due Process Clause of the federal constitution only if those regulations pertain to "freedom from restraint" that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Connor, 515 U.S. 472, 484 (1995).*fn12 Having one's cell searched does not constitute an atypical and significant hardship. See Mitchell v. Dupnik, 75 F.3d 517, 523 (9th Cir. 1996) (inspection of prisoner's legal papers during cell search where prisoner was not present does not "present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.")

Plaintiff argues that a state statute can give rise to federally protected due process interests, citing Groten v. California, 251 F.3d 844 (9th Cir. 2001). While "state statutes providing for particular procedures may create entitlements protected by due process, " . . . "not every procedural statute creates entitlements." Id. at 850. The court in Groten addressed the licensing or certification of real estate appraisers under California Code of Regulations Section 3569, not administrative procedures in the prison context. Id. The state regulations upon which plaintiff relies, inter alia, Cal. Code Regs. tit. 15, §§ 3084.1 & 3287, involve prison administrative procedures and do not implicate a constitutional liberty interest. Moreover, in general, prison officials' housing and classification decisions do not give rise to federal constitutional claims encompassed by the protection of liberty and property guaranteed by the Fifth and Fourteenth Amendments. See Board of Regents, 408 U.S. at 569.*fn13 Accordingly, plaintiff failed to state a federal due process claim or Fourteenth Amendment violation in his fourth claim for relief, and it should be dismissed.

Additionally, while Title 15 of the California Code of Regulations governs the conduct of prison employees, it does not provide a cause of action against them. See, e.g., Chappell v. Newbarth, 2009 WL 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of action under Title 15 of the California Code of Regulations); Parra v. Hernandez, 2009 WL 3818376, at **2, 8 (S.D. Cal. Nov. 13, 2009) (same). Moreover, plaintiff's claims relating to the allegedly retaliatory cell search will be addressed through plaintiff's First Amendment claim. Because plaintiff fails to state a claim upon which relief may be granted based on the violations of Title 15 regulations, plaintiff's supplemental state law claim should also be dismissed.

Accordingly, the court recommends that the motion to dismiss claims four and five be granted.

V. Conclusion

For all of the above reasons, this action shall proceed solely on plaintiff's claim that defendant LaRosa searched plaintiff's cell on September 16, 2009, allegedly in retaliation for plaintiff filing grievance MCSP-09-01626, in violation of plaintiff's First Amendment rights, and plaintiff's claims against defendant Gamez.

IT IS HEREBY ORDERED that:

1. Plaintiff's July 5, 2011 motion for sanctions (dkt. no. 53) is denied; and

2. Plaintiff's claim against defendant Keenan based on the September 16, 2009 cell search is dismissed without prejudice to plaintiff filing a motion to amend, accompanied by a proposed second amended complaint. Plaintiff's proposed second amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. The proposed second amended complaint must also bear the docket number assigned to this case and must be labeled "Second Amended Complaint."

IT IS RECOMMENDED that: 1. The March 8, 2011 motion to dismiss (dkt. no. 38), based on plaintiff's failure to exhaust administrative remedies, filed by defendants Knipp, White, Crosby, Martel, Thomason, Grzebyk, Texeira, Foston, Harrington and Keenan, be granted;

2. Defendant Wilkins' April 7, 2011 motion to dismiss (dkt. no. 45), based on plaintiff's failure to exhaust administrative remedies, be granted;

3. The motion to dismiss for failure to state a claim filed by defendants Foston, Knipp and Thomason be granted;

4. The motion to dismiss plaintiff's due process claims against defendants Foston, Knipp and Thomason be granted;

5. The motion to dismiss plaintiff's Eighth Amendment challenge to the September 16, 2009 cell search be granted;

6. Defendants' motion to dismiss plaintiff's claims four and five concerning defendants' failure to follow state regulations be granted;

7. Plaintiff's claim against defendant Keenan in connection with the September 16, 2009 cell search be dismissed, based on plaintiff's failure to state a cognizable civil rights claim; and

8. Defendant LaRosa be directed to file an answer within fourteen days from the date of any order adopting the instant findings and recommendations.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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