The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, incarcerated at California State Prison-Sacramento ("CSP-SAC"),*fn1 who proceeds without counsel and in forma pauperis, with a civil rights complaint filed pursuant to 42 U.S.C. § 1983. This action proceeds on the original complaint, against defendants Phelps and Hernandez.*fn2 Presently pending before the court are: (1) defendants' motion to dismiss plaintiff's Eighth Amendment claim; and (2) plaintiff's second motion for a preliminary injunction. For the reasons that follow, this court recommends that defendants' motion to dismiss be granted, and plaintiff's motion for preliminary injunctive relief be denied.
This action proceeds against defendants Phelps and Hernandez, based on the following allegations, as summarized by the undersigned upon the initial screening of the complaint, pursuant to 28 U.S.C. § 1915A:
Plaintiff, who is black, alleges that in April 2008, after plaintiff's cellmate was placed in administrative segregation, defendant correctional officer Phelps, a sergeant, ordered plaintiff to find himself another cellmate so that Phelps could place two of his "favorite" inmates, both white, in plaintiff's cell located in CSP-S's "B-yard, Building Two." Plaintiff states that he found an inmate to cell with . . . , signed and turned in the necessary paperwork, but within the hour Phelps cancelled the move. Plaintiff alleges that Phelps again ordered plaintiff to find a cellmate. Plaintiff alleges that there were no other open cells, and thus he was unable to find another cellmate. Plaintiff alleges that Phelps responded by ordering plaintiff cuffed; that correctional officer "John Doe 1" painfully cuffed plaintiff, verbally assaulted him, stripped plaintiff to his boxer shorts, and then forced plaintiff to stand in a holding cage in the cold for more than two hours. Plaintiff alleges that when he requested to use a restroom, correctional officer "John Doe 2" told plaintiff to "piss on yourself," and stated that Phelps had told him to give plaintiff nothing.
Plaintiff alleges that he was next moved to a suicide cell, for a period of approximately twelve hours. Plaintiff alleges that the cell was filthy, smelled of urine and feces, had no toilet paper, mattress, or covers, and that plaintiff was required to sleep on the floor in his boxer shorts. Plaintiff was then placed in a cell in "Building Three." However, plaintiff alleges that Phelps again summoned plaintiff and ordered him to find himself a cellmate. Plaintiff alleges that he was unable to do so, and, as a result, correctional officer "John Doe 3" cuffed, stripped, and threatened plaintiff, and placed him in a holding cage for six hours with no protection from the weather.
Plaintiff was then moved to administrative segregation. Plaintiff alleges that Phelps and correctional officer "John Doe 4" falsified the necessary documents, and that correctional officer "John Doe 5" affirmed the placement despite interviewing plaintiff. Plaintiff contends that throughout this period he felt threatened and unsafe; that he is a patient within the Correctional Clinical Case Management System ("CCCMS"), and felt increased paranoia; that he was afraid to return to B-yard and refused to leave administrative segregation until defendant CSP-S Warden Walker (who allegedly "did nothing about the situation in B-yard that led to plaintiff being in ad/seg in the first place") "personally ensured" plaintiff's safety. . . . Plaintiff appears to state potentially cognizable claims against defendant Phelps under the Eighth Amendment's proscription against cruel and unusual punishment, the Fourteenth Amendment's protections against arbitrary and capricious punishment [substantive due process], and the Fourteenth Amendment's right to equal protection (right to be free from racial discrimination). Plaintiff's equal protection challenge is also made pursuant to the California Constitution, Article I, section 7. Accordingly, the court will authorize service of plaintiff's complaint on defendant Phelps. . . . Plaintiff may [also] state a potentially cognizable due process claim against defendant Hernandez, premised on the factual allegations set forth in plaintiff's attached administrative grievances, which are not repeated (only referenced) in the complaint. [These allegations include the contention that, in April 2008, when plaintiff was initially removed from his cell, Hernandez boxed-up plaintiff's personal property, delayed preparing an inventory of plaintiff's items, and failed to ensure the return of two CDs, a fan, and a radio.] . . . The court will authorize service on defendant Hernandez in order to clarify plaintiff's factual allegations and assess the merits of plaintiff's claim against him. (Dkt. No. 7 at 3-5.)
II. Defendants' Motion to Dismiss
Defendants move to dismiss plaintiff's Eighth Amendment claim against defendant Phelps, on the ground that plaintiff failed to administratively exhaust his allegations of mistreatment when placed in the holding cages, and his allegation that the suicide cell in which he was placed was "filthy." See Estelle v. Gamble, 429 U.S. 97, 102 (1976) (the Eighth Amendment prohibits the imposition of cruel and unusual punishment, and embodies "broad and idealistic concepts of dignity, civilized standards, humanity and decency") (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)).
Review of the pertinent administrative grievance (Log. No. SAC-08-01839), supports defendants' representations: while plaintiff complained of Phelps' allegedly capricious and racially motivated conduct depriving plaintiff of his double-cell status, including temporary placement in holding cells and a suicide cell, and then in administrative segregation, the grievance does not address the alleged physical condition of the interim cells, or plaintiff's alleged treatment by staff during his placement those cells. (See Dkt. No. 30-2 at 3-21.)
The Prison Litigation Reform Act ("PLRA") provides 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). Pursuant to this rule, prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion also requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules, including deadlines. Woodford v. Ngo, 548 U.S. 81 (2006).
The PLRA requires that administrative remedies be exhausted prior to filing suit. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). The exhaustion requirement is not jurisdictional, but an affirmative defense that may be raised by a defendant in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). See Jones v. Bock, 549 U.S. 199, 216 (2007) ("inmates are not required to specially plead or demonstrate exhaustion in their complaints"); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119.
"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119. When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) ("mixed" complaints may proceed on exhausted claims). Thus, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
Defendants persuasively argue that these considerations, particularly the goal of according prison officials sufficient notice of a potentially remediable condition, are significant here, where plaintiff complains of past physical conditions of confinement that were not challenged, and therefore not documented, at the relevant time. The resulting constraints on now ...