The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner incarcerated at Mule Creek State Prison, under the authority of the California Department of Corrections and Rehabilitation ("CDCR"), proceeds without counsel in this civil rights action. Plaintiff filed this action in the Sacramento County Superior Court, on September 20, 2007. Defendants removed the case to this court on February 27, 2009. (Dkt. No. 2.) Although several procedural problems beset the removal, the court denied plaintiff's motion to remand because it was untimely filed. (See Dkt. Nos. 12, 16.) The court thereafter dismissed several defendants, based on the finding that plaintiff's complaint fails to state any potentially cognizable claims against them. (See Dkt. Nos. 17, 19.) The action now proceeds against defendants Rush, Anaya, Price, Chavarria, Ryan, Bourland, and Nunez. Pending is defendants' motion to dismiss. (Dkt. No. 22.) Plaintiff filed an opposition (Dkt. No. 30); defendants filed a reply (Dkt. No. 33). For the following reasons, this court recommends that defendants' motion be granted in part and denied in part, and that plaintiff be granted leave to file an amended complaint.
Plaintiff's complaint (Dkt. No. 2 at 5-33)*fn1
("complaint") is densely worded, both factually and legally, and
somewhat difficult to construe. Plaintiff's claims are premised on his
allegations that defendants, acting individually and in concert,
denied plaintiff his right to have confidential telephone calls with
his attorney. Plaintiff further contends that defendants acted in
retaliation for plaintiff's pursuit of a separate civil rights action
(Walker v. Gomez et al., Case No. 03:96-cv-0609 PCL);*fn2
and then in retaliation for plaintiff filing an
administrative grievance challenging defendants' actions. As this
court noted on initial screening, the complaint alleges a broad "first
cause of action" that "combines plaintiff's claims that his rights to
privacy, due process, and to petition the government for redress of
grievances, were violated under the First, Fourth, and Fourteenth
Amendments to the United States Constitution, and Article I of the
California Constitution," and alleges five additional "causes of
action" that "assert an amalgam of alleged violations of state
statutory and constitutional law." (Dkt. No. 17 at 5-6.)*fn3
seeks statutory, compensatory and punitive damages, as well as
declaratory and injunctive relief.
The court addresses the merits of defendants' motion to dismiss in the following sequence: the court first identifies the allegations and claims that plaintiff administratively exhausted; then, the court determines whether state law claims are precluded under the requirements of the California Tort Claims Act; the court then reviews plaintiff's claims for injunctive and declaratory relief; thereafter, the court considers whether the remaining matters state potentially cognizable claims for relief.
II. Exhaustion of Administrative Remedies
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. 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). However, 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. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust -- a procedure closely analogous to summary judgment --then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120 n.14. 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.
"The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Jones, supra, 549 U.S. at 218. In California, prisoners are required to lodge their administrative complaint on a CDC Form 602, which requires only that the prisoner "describe the problem and action requested." Cal. Code Regs. tit. 15, § 3084.2(a). In Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009), the Ninth Circuit Court of Appeals adopted the standard enunciated by the Seventh Circuit, which provides that "when a prison's grievance procedures are silent or incomplete as to factual specificity, 'a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.'" Griffin, 557 F.3d at 1120 (reviewing Arizona procedures), quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Thus, in California, "[a] grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved.
A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Griffin, 557 F.3d at 1120; accord, Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010).
"[E]xhaustion is not per se inadequate simply because an individual later sued was not named in the grievances." Jones, 549 U.S. at 219. It is nonetheless appropriate to require that a prisoner demonstrate, through the administrative grievance process and consistent with the PLRA, that he has standing to pursue his claims against a particular defendant. "[A]t an irreducible minimum, Art[icle] III [of the United States Constitution] requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.'" Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979).
During the relevant period of time, plaintiff exhausted seven administrative grievances. These grievances have been identified, and duplicated for the court, by Calipatria State Prison Appeals Coordinator J. Jimenez. See Jimenez Decl. (Dkt. No. 22-2.) The court's review of all seven grievances,*fn4 each denied at the Director's Level Review, demonstrates that only two grievances contain allegations relevant to this action, Log No. CAL-05-02249, and Log No. CAL-05-02594.
In Log No. CAL-05-02249, initially submitted on November 9, 2005, plaintiff alleged that defendants*fn5 Ryan, Nunez, Chavarria, Rush, and Anaya, "entered into a conspiracy and/or were grossly negligent . . . in prevent[ing] [plaintiff ] from the enjoyment of his constitutional and statutory right to privacy by non-electronically eavesdropping on [plaintiff's] telephone conversations with his attorney, so as to gain an advantage in the ongoing civil rights litigation between [plaintiff] and the defendants . . . in the matter, Walker v. Gomez, et al." (Dkt. No. 30 at 37, 43.) Plaintiff alleged that "staff in the Litigations Office," specifically, Litigation Coordinator Nunez, "acting as [an] agent on behalf of the [other] defendants referred to herein," "contacted K. Rush and D. Anaya and informed them I would be receiving telephone calls from my attorney, and it was permissible to eavesdrop on my attorney calls because they were not confidential." (Id. at 43.) As a result, plaintiff alleged, he was deceived into believing that he "had no choice but to be and to remain in a position and proximity which would permit them to eavesdrop on [plaintiff's] telephone calls with his attorney." (Id.) Plaintiff alleged that the named staff members "breached their legal and ethical duty" to inform plaintiff that he could speak confidentially with his attorney by telephone. (Id.) Plaintiff asserted that, thereafter, when he "attempted to take steps to safeguard his rights," he was retaliated against in the following ways: (1) that Anaya told plaintiff that he had only two options, to continue having his calls monitored, or to be visited by his attorney; and (2) that plaintiff's telephone calls were reduced from 30 minutes to 15 minutes. (Id. at 44.) Plaintiff concluded (id.):
Although the actions alleged have been ongoing as far back as 2004, the most recent manifestations . . . consist of K. Rush and/or D. Anaya, non-electronically eavesdropping on my telephone calls with my attorney during the following five (5) dates: 9/13/05, 9/21/05, 10/26/05, 10/27/05, 10/28/05.
Pursuant to these allegations, plaintiff asserted that the named staff members had violated plaintiff's "right to privacy under Art. 1 § 1 of the California Constitution, and Chapter 1.5 (Invasion of Privacy)[,] § 636 of the California Penal Code, as well as my right to [be] free from retaliation for exercising my State and Federal right of access to the courts." (Dkt. No. 30 at 37.)
This grievance was denied at the First Level Review, on December 14, 2005, on the ground that the "subject" telephone call, later identified only as plaintiff's 10/27/05 call, was properly handled because it had not been pre-approved as a "confidential call," as required by former Section 3282(g)(1) and (2), Title 15, California Code of Regulations.*fn6 (Dkt. No. 30 at 40.) The First Level Decision noted that, "[w]hen the [plaintiff] was done speaking with the judge, his attorney got on the line and began talking with the appellant. The telephone call was not pre-approved . . ." (Id. at 40.) The grievance was denied at the Second Level Review and Director's Level Review for the same reasons (id. at 36, 39) concerning the one telephone call, notwithstanding plaintiff's efforts to have all "five" of his identified calls addressed, and despite his assertion that his calls were conducted not on "inmate phones," but on "the counselor's phones," where confidential calls are normally made (id. at 41). The claim was exhausted pursuant to the Director's Level Decision issued April 28, 2006.
On December 22, 2005, plaintiff submitted Log No. CAL- 05-02594, a "staff complaint," wherein he asserted that defendant Price, who interviewed plaintiff on December 7, 2005, pursuant to plaintiff's above-noted grievance (Log No. CAL-05-02249), threatened and intimidated plaintiff because he had filed the grievance. Plaintiff described the incident as follows (Dkt. No. 30 at 51, 57):
On 12/7/05, Capt. J. Price interviewed me concerning a complaint I filed against staff. . . . While trying to explain a remedy to prevent such acts from happening in the future, Capt. Price cut me off, and proceeded to try and justify the actions of the involved staff. When I tried to point out the futility of his attempts, he became frustrated, and told me[,] "I don't have time for this. I told you guys about wasting my time with these 602's. I have a yard to try to get up and running! You may have one (sic) the last battle, but you won't win the next one. The next time, you'll be the one in the hole!" When I tried to ask him what did he mean, he just stated, "You know what I mean. [D]on't play games on my yard!' I told him, I don't play games. He said, it didn't matter what I said. He said, "Both green and blue told me you were a "troublemaker." I tried to tell him that I haven't caused trouble in the 2 1/2 years I've been on D-Facility. He then stated, "Just keep this in the back of your mind, the next time I hear you're playing games on my yard, you'll be in the hole!" When I tried to defend myself from these baseless allegations, Price began yelling loudly, "You want to go the hole now?! You want to go to the fucking hole right now?!" I stated, no Sir. He stated, "Then take heed to my words, and get out of my office. I'm busy." [¶] I left his office, intimidated, wondering why he screamed at me that way, and threatened to put me in the hole. I have the specific right not to be treated this way during an interview of my appeal.
Pursuant to these allegations, plaintiff requested "an unbiased, independent and thorough investigation. I want to be assured in writing that no further reprisals will be taken against me for exercising my State and Federal Constitutional and Statutory rights to use the appeal system. . . ." (Dkt. No. 30 at 51.)
This grievance was "partially granted" at the First Level Review, because an investigation was conducted in response to plaintiff's allegations. (Id. at 52, 55-56.) Shortly thereafter, on April 13, 2006, plaintiff was transferred to Mule Creek State Prison. Nevertheless, plaintiff sought and obtained a Second Level Review, which was "partially granted" due to the investigation having been conducted. (Id. at 52-54.) The Director's Level Review decision was issued September 27, 2006, denying plaintiff's grievance. (Id. at 50.)
Pursuant to this review, the court finds that the following allegations, set forth in plaintiff's complaint (and summarized here), were administratively exhausted:
a. That, on September 13, 2005, October 26, 2005, October 27, 2005, and October 28, 2005,*fn7 defendants Ryan, Nunez, Chavarria, Rush and Anaya allegedly denied plaintiff confidential telephone calls with his attorney; this conduct was allegedly motivated by retaliation against plaintiff for pursuing another federal civil rights action.*fn8 (Complaint ("Cmplt.") at ¶¶ 13-18, 40-41.)
b. That, on December 7, 2005, defendant Price, allegedly acting in retaliation for plaintiff filing the above-noted administrative grievance, intimated and threatened plaintiff. (Cmplt. ¶ 29.)
However, the court finds that the following allegations, while set forth in plaintiff's complaint, were not administratively exhausted, and therefore must be dismissed from this action:
a. That, on November 28, 2005, defendants Price and Chavarria allegedly retaliated against plaintiff for filing his November 9, 2005 grievance (Log No. CAL-05-02249), by conspiring to place an inmate, who had previously been administratively segregated for conspiring to assault plaintiff, back into plaintiff's facility; that defendants Price and Chavarria "knew or should have known that placing that inmate back on the facility would result in Plaintiff being assaulted and placed in segregation."*fn9 (Cmplt. ¶¶ 22-26.)
b. That, on March 21, 2006, and March 30, 2006, defendants Rush and Chavarria allegedly retaliated against plaintiff for filing his November 9, 2005 grievance (Log No. CAL-05-02249), by ordering another correctional officer (Partida) to handcuff plaintiff during his telephone calls with his attorney.*fn10 (Cmplt. ¶¶ 31-33.)
III. California Tort Claims Act
Defendants contend that plaintiff's state law claims should be dismissed due to plaintiff's alleged failure to comply with ...