The opinion of the court was delivered by: John A. Kronstadt United States District Judge
MEMORANDUM AND ORDER RE MOTION TO DISMISS FIRST AMENDED COMPLAINT
On September 20, 2010 Plaintiff, then a federal prisoner at the United States Penitentiary at Lompoc, California ("USP Lompoc"), filed this civil rights action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In the original Complaint, Plaintiff contended that officials of the Federal Bureau of Prisons ("BOP") assertedly: (1) were deliberately indifferent to Plaintiff's medical needs; (2) failed to make reasonable accommodation for Plaintiff's alleged paruresis ("Shy Bladder Syndrome"); and (3) retaliated against Plaintiff for filing administrative grievances and a habeas corpus action (Complaint, p. 7). Plaintiff named as Defendants eleven officials at USP Lompoc and a Medical Licensed Practitioner at the United States Prison at Victorville.
On December 20, 2010, the Court issued an "Order Dismissing Complaint With Leave to Amend." On January 18, 2011, Plaintiff filed a First Amended Complaint, naming as Defendants four USP Lompoc officials: Warden Sanders, Assistant Warden "Lathrope," Chief Medical Officer Giron, and Case Manager Leyvas, all sued in their individual capacities. The First Amended Complaint contains two claims for violation of the Eighth Amendment. In Claim I, Plaintiff alleges that Dr. Giron "failed to take necessary actions to assure that Plaintiff's Incident Report and related sanctions would be expunged and refused to prescribe a single cell for Plaintiff as well as prescribe an alternative form sample other urine [sic] when asked to give a random sample for detection of a controlled substance" (First Amended Complaint, p. 5). In Claim II, Plaintiff alleges that Defendants Sanders, Lathrope and Leyvas, with knowledge of Plaintiff's medical condition, caused Plaintiff to be confined in a facility without single cells or private bathrooms (id.).
On July 22, 2011, Defendants Sanders, Lothrop (allegedly incorrectly sued as "Lathrope"),*fn1 Giron and Leyvas filed a motion to dismiss the First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, accompanied by a supporting memorandum ("Defendants' Mem."). Defendants contend: (1) Plaintiff failed to exhaust available administrative remedies, as required by the Prison Litigation Reform Act of 1995 (Pub. L. No. 104-134, 110 Stat. 1321), 42 U.S.C. § 1997e(a) ("PLRA"); (2) the First Amended Complaint fails to allege a claim for relief; (3) Defendants are entitled to qualified immunity; and (4) Plaintiff fails to seek appropriate relief. On August 11, 2011, Plaintiff filed a verified Opposition to the Motion to Dismiss. On October 13, 2011, Defendants filed a Reply.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
In the First Amended Complaint, Plaintiff alleges:
Plaintiff suffers from a condition which hinders Plaintiff from urinating in public or around other individuals ("Declaration of Timothy Wayne Arnett in Support of Claims," attached to First Amended Complaint ["Plaintiff's Dec."], ¶ 2). Plaintiff attributes the onset of his condition to an incident at the Fresno County jail in December of 2003 (id., ¶ 4). During the last fourteen years of Plaintiff's confinement, Plaintiff has been asked many times to provide urine samples (id., ¶ 3). Plaintiff has struggled to comply under direct visual supervision (id.). Plaintiff has never tested positive for any illegal narcotic (id.).
On August 25, 2006, Plaintiff was transferred to the United States Prison at Victorville and placed in a cell with another inmate (id., ¶ 5). After Plaintiff reported trouble both urinating when his cellmate was present and giving a random urine sample, Plaintiff saw a medical licensed practitioner, who ordered a lipid panel (id., ¶¶ 5-6). The medical licensed practitioner did not advise Plaintiff that Plaintiff might be suffering from paruresis, refer Plaintiff to the psychology department, or take any further steps to address Plaintiff's medical problem (id., ¶ 6).
On February 9, 2009, while Plaintiff was an inmate at USP Lompoc, Officer Diaz called Plaintiff to the Lieutenant's office to provide a urine sample (id., ¶ 7). After Plaintiff informed Diaz that Plaintiff did not have sufficient liquid in Plaintiff's bladder to urinate, Diaz locked Plaintiff in a dry holding room for approximately an hour (id.). When Diaz returned, Plaintiff told Diaz that Plaintiff had a medical problem and requested more water, which Diaz refused (id.). Plaintiff allegedly again tried unsuccessfully to provide a urine sample (id.). Plaintiff suggested that Diaz search Plaintiff and then place Plaintiff in the dry holding cell under indirect visual supervision (id.).
Diaz reported Plaintiff's request to Lieutenant D. Grimes (id., ¶ 8). Grimes came into the holding room and began yelling at Plaintiff, accusing Plaintiff of trying to create policy (id.). When Plaintiff attempted to explain that BOP Program Statement 6060.80 permitted Grimes to place Plaintiff in a dry room to provide a sample under indirect visual supervision, Grimes "went into a rage" and began yelling at Plaintiff, saying Plaintiff should be locked up (id.). Grimes locked Plaintiff in the dry room (id.).
A few minutes later, Grimes and Diaz returned (id., ¶ 9). Grimes handcuffed Plaintiff and said he was taking Plaintiff to the "SHU" (Special Housing Unit) for refusing to provide a urine sample (id.). Grimes refused Plaintiff's request for more water and time, and placed Plaintiff in a small dry holding room in the SHU (id.).
Approximately twenty minutes later, Lieutenant J. Mitchell arrived (id., ¶ 10). Plaintiff told Mitchell that Plaintiff assertedly had a medical problem which made it impossible at times for Plaintiff to urinate on demand under direct visual supervision (id.). Plaintiff asked Mitchell for more water and time to provide a sample in a dry room without someone staring at Plaintiff (id.). Mitchell became very upset, refused Plaintiff's request, and said she was giving Plaintiff an Incident Report for refusing to provide a urine sample (id.). Prior to the incident, Plaintiff had enjoyed all inmate privilege and had earned the right to a single-man cell with its own private toilet and sink (Plaintiff's Dec., ¶ 12).
On February 18, 2009, Disciplinary Hearing Officer J.L. Spaulding held a hearing on the Incident Report (id., ¶ 11; First Amended Complaint, Ex. B). In a March 16, 2009 proceeding, Spaulding found Plaintiff guilty of refusing to provide a urine sample (Plaintiff's Dec., ¶ 11; First Amended Complaint, Ex. B). Plaintiff received disciplinary sanctions including 41 days' lost good time, a 60-day SHU term, loss of telephone privileges for 90 days, loss of commissary privileges for 90 days, loss of visiting privileges for one year, and reduced work detail pay for one year (id., ¶ 13). Plaintiff also was placed on the "hot list" for those found to have refused to provide a urine sample (id.). Plaintiff was required to give a urine sample every month for two years (id., ¶ 17).
When "Psychology Doctor" Whitney Rooks came to Plaintiff's cell in the SHU on her weekly rounds, Plaintiff said he needed to speak to Rooks concerning Shy Bladder Syndrome (id., ¶ 14). Rooks said she would schedule a meeting with Plaintiff after his release from the SHU (id.).
Plaintiff requested a doctor's appointment concerning his problem urinating (id., ¶ 16). Nearly two months later, on May 14, 2009, Defendant Giron called Plaintiff into Giron's office. Giron recorded that Plaintiff suffered from "parauresis" [sic] (id.). Plaintiff told Giron that Plaintiff was appealing the Incident Report to the Regional Director (id., ¶ 17). Giron assured Plaintiff that the Regional Director would contact Giron, and that thereafter Giron would expunge the Incident Report (id.). However, Giron refused to contact the Hearing Officer or the Regional Director (id.). Giron issued Plaintiff a medical slip stating: "May have extra 2 hours and extra water when submitting urine samples due to medical reasons." (id.; First Amended Complaint, Ex. D).
On June 5, 2009, Plaintiff saw Defendant Rooks and expressed concern that Plaintiff might be sent to the SHU again because prison officials were not following Defendant Giron's medical order and because Plaintiff was not being allowed to provide a urine sample in a dry room under indirect supervision (id., ¶ 18). Rooks said she would provide the Captain's and Lieutenant's offices with a list of inmates who suffered from Shy Bladder Syndrome which would include Plaintiff (id.). However, Rooks never did so (id.).
On July 29, 2009, Plaintiff spoke to Defendant Giron concerning Giron's failure to cause the Incident Report to be expunged (id., ¶ 19). Giron denied Plaintiff's request for a more specific medical report, stating that, when officials at the BOP Central Office read Giron's previous report, they would expunge the Incident Report (id.). Giron refused Plaintiff's request that Giron call the Central Office (id.).
Throughout this period, Plaintiff suffered continuously from headaches, nightmares, sleeplessness, nervousness, anxiety, eating binges and severe emotional swings due to the manner in which Plaintiff was required to give random urine samples and Plaintiff's housing in a two-man cell with one toilet (id., ¶ 20).
On December 18, 2009, Plaintiff told Giron that the Central Office had denied Plaintiff's appeal, and asked whether the Central Office had ever called Giron (id., ¶ 21). Giron said "no" (id.). Giron wrote a new medical slip stating that Plaintiff had "Shy Bladder Syndrome" and required extra water and placement in a dry cell to provide a sample (id.).
A "BOP security management variable" placed on Plaintiff to keep him at USP Lompoc was scheduled to expire in February 2010 (id., ¶ 22). Plaintiff's Case Manager, Defendant Leyvas, warned Plaintiff that Plaintiff thereafter would be transferred to a lower security prison (id.). Plaintiff wanted to stay at USP Lompoc to be close to Plaintiff's son and to retain his single-cell housing (id.). In January of 2010, at Plaintiff's request, Leyvas applied to the BOP's Custody Designation Center requesting that Plaintiff be retained at USP Lompoc for one more year (id.). The application was granted, and a management variable was placed on Plaintiff to keep him at USP Lompoc at least until March of 2011 (id.).
On January 25, 2010, Plaintiff filed a habeas corpus petition in this Court challenging the Incident Report (Plaintiff's Dec., ¶ 23). See Arnett v. Sanders, CV 10-498-DDP (E). That day, Plaintiff's son unexpectedly passed away (id., ¶ 24). Plaintiff had been unable to receive visits from his son due to the Incident Report (id.).
On March 24, 2010, after pressure from the Office of the United States Attorney, Disciplinary Hearing Officer J.L. Spaulding expunged the Incident Report, but only after Plaintiff had served all of the sanctions except the "last year's worth of monthly urine samples" (id., ¶ 25). Plaintiff regained his single cell (id., p. 26). However, Defendant Leyvas told Plaintiff that Leyvas had contacted the Designation Center and had caused Plaintiff's management variable to be removed, and that Plaintiff would be transferred to another institution (id.). Leyvas said she had done this because Plaintiff had filed the habeas corpus action (id.). Leyvas said Plaintiff would be transferred to the Federal Correctional Institution at Terminal Island ("Terminal Island"), and would lose his single cell with its private bathroom because Terminal Island did not have single cells or private bathrooms (id.).
Plaintiff asked Defendant Giron to prescribe a single cell because of Plaintiff's medical disability (id.). Giron said he could not do so because Defendants Lothrop and Sanders had told Giron not to do so (id.). Plaintiff presently is incarcerated at Terminal Island in a dorm with numerous other inmates, ...