The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (Doc. 57)
Plaintiff Robert E. Coleman ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants R. Chavez, A. Diaz, M. Lopez, P. Maldonado, T. Norton, and S. Rousseau. On April 6, 2011, Plaintiff filed his fourth amended complaint. Pl.'s Fourth Am. Compl. ("4AC"), Doc. 45. On August 17, 2011, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim, and pursuant to the unenumerated portion of Rule 12(b) for failure to exhaust administrative remedies. Defs.' Mot. Dismiss, Doc. 57. On September 16, 2011, Plaintiff filed his opposition. Pl.'s Opp'n, Doc. 62. On September 21, 2011, Defendants filed their reply. Defs.' Reply, Doc. 63. The matter is submitted pursuant to Local Rule 230(l).
The Court had notified the parties that the Court would screen Plaintiff's complaint pursuant to 28 U.S.C. § 1915A. Defendants decided to not await such screening and filed their motion to dismiss for failure to state a claim. Because screening pursuant to § 1915A and Rule 12(b)(6) relies on equivalent standards for failure to state a claim, the Court will consider the merits of Defendants' motion.
II. Plaintiff's Fourth Amended Complaint
Plaintiff was incarcerated at California State Prison-Corcoran ("CSP-Cor") during the events alleged. 4AC ¶ 3. Plaintiff names as Defendants: T. Norton, associate warden of CSPCor, S. Rousseau, lieutenant at CSP-Cor, R. Chavez, correctional counselor II at CSP-Cor, A. Diaz, administrative segregation ("ad seg") lieutenant at CSP-Cor, M. Lopez, ad seg second watch sergeant at CSP-Cor, and P. Maldonado, ad seg third watch sergeant at CSP-Cor. Id. ¶¶ 4-9.
In January of 2008, Plaintiff was placed and retained in CSP-Cor ad seg. Id. ¶ 13. In February 2008, Plaintiff received in the mail a Report and Recommendation to dismiss Plaintiff's action from the Central District of California concerning his case, Coleman v. Susan L. Hubbard, et al., 2:06-cv-07513- SGL-PJW. Id. ¶ 14. After receiving the mail, Plaintiff informed Defendants Diaz and Lopez about his February 19, 2008 court deadline and sought to obtain possession of his legal and personal property. Id. ¶ 15. Plaintiff was being denied his property due to his refusal to accept a cellmate. Id. ¶ 16. However, Plaintiff did not refuse to accept a cell mate, but rather refused to sign a compatibility agreement form. Id.
On February 12, 2008, Plaintiff filed an inmate appeal to the warden of CSP-Cor and the CSP appeals coordinator about Defendants Diaz and Lopez. Id. ¶ 17. On February 18, 2008, one day before the deadline, Plaintiff was issued his property. Id. ¶ 18. Plaintiff was allegedly unable to file an objection within the deadline as result of the denial of his property. Id. Plaintiff's case was subsequently dismissed.*fn1 Id.
On February 27, 2008, after Plaintiff's grievance was submitted, officer S. Vela "accosted" Plaintiff's cell to discuss a potential cell mate. Id. ¶ 19. Plaintiff informed officer Vela that if Vela felt this cell mate was compatible, he can put him inside the cell, but Plaintiff refused to sign the compatibility form. Id. Plaintiff was refusing a direct order. Id.
Officer Vela issued a Rules Violation Report ("RVR") for refusing a direct order. Id. ¶ 20. This RVR was "orchestrated" by Defendants Diaz, Lopez, and Maldonado, who goaded officer Vela into writing it because of Plaintiff's protected conduct to file grievances against Defendants. Id. The RVR was signed by Defendant Maldonado. Id.
On March 3, 2008, Defendants Diaz and Lopez placed Plaintiff on a thirty days property restriction under the warden's December 2006 double cell housing policy. Id. ¶ 21. Plaintiff was allowed only one pair of boxers, t-shirt, socks, sheet and blanket, and was "eviscerated" from his hygiene products, legal and personal property, prescription sunglasses, and towel. Id. ¶ 22. Plaintiff remained on this status for six months. Id.
In April 2008, Defendants Diaz, Lopez, and Maldonado created a memorandum of "do's and don'ts", distributed to ad seg inmates, informing inmates about specific punishments if the rules were violated. Id. In April 2008, Plaintiff executed a class action appeal, challenging the memo. Id. ¶ 24. Plaintiff gathered roughly twenty-four signatures and mailed the appeal to the appeals coordinator. Id. Plaintiff's grievance was not processed or returned. Id.
On May 8, 2008, Defendant Maldonado approached Plaintiff's assigned cell and told Plaintiff that he was being moved. Id. ¶ 25. Plaintiff made several attempts to receive a definitive reason from Defendant Maldonado as to why he was being moved. Id. Defendant Maldonado stated that "because I said so." Plaintiff then requested to speak with a captain. Id. Defenadnt Maldonado then threatened Plaintiff with a cell extraction if he refused to move. Id. After Plaintiff asked again to speak to a captain, Defendant Maldonado did not return. Id.
On May 9, 2008, Defendants Diaz and Lopez also approached Plaintiff's cell and threatened him with a cell extraction if he refused to move. Id. ¶ 26. Plaintiff then complied, and was hauled off to a cell where Defendants knew the lights were not working. Id. Plaintiff remained in this cell for two months. Id.
On February 20, 2008, the Office of Administrative Law found the CDCR's 2004 indeterminate security housing policy to be invalid. Id. ¶ 29. In March 2009, Plaintiff was relocated from ad set to 4A Security Housing Unit ("SHU"). Id. ¶ 30. In December 2009, CPSICC representatives, Defendants Norton, Rousseau, and Chavez, requested that Plaintiff be assessed with an indeterminate SHU. Id. ¶ 31. On May 19, 2010, W. S. Nickel's recommended that Plaintiff be released from SHU and transferred to an appropriate 180 design general population because of Plaintiff's positive SHU program and minimum disciplinary history. Id. ¶ 33. On May 21, 2010, CSP ICC representatives assessed Plaintiff a six month SHU term for delaying a peace officer. Id. ¶ 34. Plaintiff also had a pending RVR dated May 13, 2010 for refusing to accept assigned housing, and if found guilty would receive a later Minimum Early Release Date ("MERD"). Id. Plaintiff never received this second RVR. Id.
On August 16, 2010, CSP-Cor ICC representatives assessed a consecutive SHU term related to the November 24, 2009 RVR, where he had already served his sentence. Id. ¶ 35. Plaintiff had been assessed an indeterminate SHU term based on falsified documents regarding Plaintiff's violent disciplinary history. Id. ¶ 36. The ICC representatives were aware that Plaintiff had only one mutual combat incident, and an alleged assault infraction over Plaintiff's twenty years of incarceration. Id. ¶ 37. Plaintiff alleges that he was retaliated against for filing additional grievances. Id. ¶ 38.
Plaintiff contends a denial of access to the courts, retaliation in violation of the First Amendment, and violation of the Due Process Clause of the Fourteenth Amendment. ...