The opinion of the court was delivered by: Hayes, Judge:
The matters before the Court are the Motion to Dismiss filed by Defendant (ECF No. 7), and the Report and Recommendation issued by United States Magistrate Judge Louisa S. Porter (ECF No. 16).
Plaintiff Matthew Louis Johnson, a state prisoner currently incarcerated at the Correctional Training Facility in Soledad, California, and proceeding pro se and in forma pauperis, filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that, while he was incarcerated at Centinela State Prison in 2005, Defendant Darr, a correctional officer at that facility, violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. (ECF No. 1 at 2). Specifically, Plaintiff alleges that, on July 19, 2005, Defendant ordered certain cells to be opened and allowed the inmates of those cells to physically injure Plaintiff. Id. at 15.
On August 12, 2005, Plaintiff submitted a CDC 602 Inmate Appeal Form, log number CEN-A-05-1339 ("Inmate Appeal No. 05-1339"), for the First Level of Review. Id. at 25. In Inmate Appeal No. 05-1339, Plaintiff stated in the "Describe Problem" portion of the form: "Personal injury suit of the Civil Right[s] Act on a[n] inmate that was caused by a prison official/government employee." Id. On an attached sheet, Plaintiff described the July 19, 2005 incident which is the subject of the current civil action. Id. at 27.
On September 28, 2005, Inmate Appeal No. 05-1339 was denied at the First Level of Review. Id. at 29.
On November 9, 2005, Plaintiff submitted a request for Second Level Review of Inmate Appeal No. 05-1339. Id. at 26.
On January 10, 2006, Plaintiff's appeal was denied at the Second Level of Review and he was informed that he could appeal to the Director's Level of Review. Id. at 30.
On March 1, 2006, the prison appeals office received Plaintiff's attempt to appeal Inmate Appeal No. 05-1339 to the Director's Level of Review. (Foston Decl. ¶ 9(a), ECF No. 7-4). "On March 1, 2006, the appeal was screened out, rejected and not accepted by [the Office of Inmate Appeals], because [Plaintiff] failed to submit the appeal for a Second Level review at the institution." Id. On March 1, 2006, Plaintiff was sent a letter which stated: "The CDC 602 Inmate/Parolee Appeal Form must have been accepted and completed through the Second Level of Review on behalf of the Warden or Parole Region Administrator." (ECF No. 7-4 at 11).
On May 22, 2006, Plaintiff inquired about the status of Inmate Appeal No. 05-1339, and a letter was sent to him which stated: "There is no record that this appeal has been accepted for a Director's Level of Review. It may have been returned to you with a letter similar to this one explaining what was needed in order for it to be accepted for review." Id. at 13.
On June 14, 2006, Plaintiff, who had been transferred to the Correctional Training Facility in Soledad, filed his first action in this Court pursuant to 42 U.S.C. § 1983 against Defendant related to the July 2005 incident. See Johnson v. Darr, S.D. Cal. Case No. 06-cv-1257-JAH-POR.
On December 13, 2007, the Court dismissed the entire action without prejudice, in part because Plaintiff "fail[ed] to exhaust administrative remedies, in that plaintiff failed to complete the Third Level of Review required to bring suit in federal court." See S.D. Cal. Case No. 06-cv-1257, ECF No. 20 at 3.
On January 14, 2008, Plaintiff filed a second action in this Court pursuant to 42 U.S.C. § 1983 against Defendant related to the July 2005 incident. See Johnson v. Darr, S.D. Cal. Case No. 08-cv-80-DMS-POR.
On March 17, 2009, the Court dismissed the entire action with prejudice due to Plaintiff's failure to exhaust his administrative remedies. See S.D. Cal. Case No. 08-cv-80, ECF No. 13 at 1. In so ruling, the Court adopted the Report and Recommendation of the Magistrate Judge, which stated: "[T]his Court finds ... [that Plaintiff] has not yet completed the Third Level of Review. Plaintiff, thus, is too late to correct any deficiencies concerning the exhaustion of his administrative record." See S.D. Cal. Case No. 08-cv-80, ECF No. 10 at 10.
Plaintiff appealed the Court's Judgment dismissing the second action. See S.D. Cal. Case No. 08-cv-80, ECF No. 15.
On March 3, 2010, the Court of Appeals for the Ninth Circuit issued an order affirming in part and vacating in part the Judgment in Plaintiff's second action. See S.D. Cal. Case No. ...