The opinion of the court was delivered by: Hayes, Judge:
The matters before the Court are the Magistrate Judge's Report and Recommendation (ECF No. 16), the Motion to Dismiss the Complaint (ECF Nos. 12, 14), and the Motion for Reconsideration (ECF No. 24).
On February 25, 2011, Plaintiff Darrin Armstrong, a pro se state prisoner currently incarcerated at Centinela State Prison, filed a complaint against prison officials alleging civil rights violations pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff, who is African-American, alleges that on March 20, 2010, he was attacked by a group of white prisoners. Plaintiff alleges that: "[D]efendants Smalls, Anderson, Whitman, Montano, [and Zills] had knowledge prior to the incident; from 2 or more reliable sources that white inmates were going to attack; and try to kill some black prisoners, on C-facility." Id. at 3. Plaintiff alleges that he was stabbed in the face and suffered injuries as a result of the attack. Plaintiff asserts two claims: (1) deliberate indifference to Plaintiff's health and safety in violation of the Eighth Amendment; and (2) negligence in violation of California Civil Code section 1714 and California Government Code section 820.
On June 3, 2011, Defendants Small, Anderson, Whitman, Montano, and Zills filed a Motion to Dismiss Plaintiff's Complaint contending that Defendants are immune from suit for money damages in their official capacities, Plaintiff failed to exhaust his administrative remedies, Plaintiff's complaint fails to state a cognizable claim for relief under the Eighth Amendment, and Plaintiff's complaint fails to satisfy the heightened pleading standard against public employees regarding the state negligence claim. (ECF Nos. 12, 14).
On August 22, 2011, the Magistrate Judge issued a Report and Recommendation ("R&R") recommending that Defendants' Motion to Dismiss be granted in part and denied in part. (ECF No. 16). The R&R recommends that Defendants' Motion to Dismiss be granted with respect to Defendants' immunity from suit for monetary damages against them in their official capacities and Plaintiff's failure to exhaust his administrative remedies under federal and state law. The R&R recommends that Defendants' Motion to Dismiss Plaintiff's Eighth Amendment claim for failure to state a claim be denied. The R&R recommends that Defendants are not immune from suit pursuant to California Government Code sections 820.2, 820.8 and 951.
On August 31, 2011, Defendants Small, Anderson, Whitman, Montano, and Zills filed an Objection to the Report and Recommendation. (ECF No. 17). On October 3, 2011, Plaintiff filed an Objection to the Report and Recommendation as well as a Motion for Reconsideration of the Report and Recommendation. (ECF Nos. 22, 24).
II. Objections to the Report and Recommendation
Defendants do not object to the conclusion of the Report and Recommendation that Plaintiff failed to exhaust his administrative remedies, but they object to the disposition of the case. Defendants contend that although the Report and Recommendation recommends that the case be dismissed without prejudice, it does not address whether Plaintiff should be given leave to amend. Defendants contend that the proper resolution of the case is dismissal without prejudice and without leave to amend. Defendants contend: "Dismissing the lawsuit without prejudice allows the prisoner to bring the lawsuit again, ... if and when he properly exhausts administrative remedies ... dismissing the lawsuit without leave to amend promotes Congress's goal of reducing the quantity and increasing the quality of prisoner litigation, as articulated in the Prison Litigation Reform Act ...." (ECF No. 17 at 2).
Plaintiff objects to the Report and Recommendation's finding that he failed to exhaust his administrative remedies. Plaintiff contends that his grievance described the Defendants' conduct and provided them prior knowledge of his claim.*fn1
The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).
The Magistrate Judge correctly held that, pursuant to the Prison Litigation Reform Act, a prisoner who wishes to bring an action under 42 U.S.C. § 1983 must first exhaust the available administrative remedies. See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002). The Magistrate Judge correctly held: "Exhaustion of the available administrative remedies is determined by examining the relevant administrative appeal system." (ECF No. 16 at 12) (citing Jones v. Bock, 549 U.S. 199, 218 (2007)). The Magistrate Judge correctly held that pursuant to the requirements of the California prison system, Plaintiff "must proceed through four levels: (1) informal resolution, (2) first formal level appeal, (3) second formal level appeal to the institution head, and (4) third level appeal to the Director of the California Department of Corrections." Id. (citing 15 Cal. Code Regs. §§ 3084.5, 3084.7).
The Magistrate Judge correctly stated that on March 25, 2010, Plaintiff was issued a rule violation report for "willfully participating in a racial riot" as a result of the altercation between the African-American and Caucasian prisoners. Id. at 5. The Magistrate Judge correctly stated that on April 23, 2010, Plaintiff appeared before the prison's Senior Hearing Officer who concluded that Plaintiff ...