FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He claims that officials at California State Prison, Solano, have a pattern of imposing systematic race-based lockdowns and/or modified programs, thereby denying plaintiff equal protection in violation of the Fourteenth Amendment. Pending before the court are: (1) defendants Fox, Swarthout, Torres, Kesterson, Singh, Sisto, and Rogers's motions to dismiss for failure to exhaust administrative remedies and for failure to state a claim pursuant to Federal Rules of Civil Procedure ("Rule") 12(b) and 12(b)(6) (Docket Nos. 35, 42, 52); and (2) plaintiff's motion for default judgment against defendant Rogers (Docket No. 40). For the reasons stated below, the court recommends that defendants' motions be granted to the extent that the complaint fails to state a claim against defendant Singh, but denied in all other respects, and that plaintiff's motion for default judgment be denied.
Plaintiff's March 16, 2010 complaint alleges an equal protection claim based on allegations that prison officials at California State Prison, Solano have a policy and practice of imposing discriminatory race-based lookdowns. Dckt. No. 1 at 5, 8 (alleging "defendants [have] refused to adhere to [a] court order dated May 13, 2009," mandating that such practices stop). In support of this claim, plaintiff describes two alleged instances of race-based lockdowns. The first allegedly began on June 16, 2009, and the second on December 24, 2009.
Plaintiff alleges that on June 16, 2009, there was a fight between five black and Northern Hispanic inmates. As a result, the five inmates involved in the fight were placed in administrative segregation. Afterward, all other black and Hispanic inmates, including plaintiff, who is black, were subjected to a "Modified Program" from June 16, 2009 until July 15, 2009. Plaintiff alleges he was placed under this modified program solely because of his race. He claims he was confined to his cell for 24 hours a day, and lost "all rights and privileges."
Attached to the complaint is a copy of the Program Status Report signed by Warden Haviland, reflecting the initial plan of operation for this modified program. Dckt. No. 1, Ex. A. Also attached to the complaint is a copy of the Program Status Report, prepared by Captain Fox, and signed by Warden Haviland, reflecting the July 14, 2009 update to the plan of operation for the modified program. Id., Ex. B. Plaintiff alleges that Kesterson, Sisto, and Torres "wrongfully endorse[d] this race based lockdown[ ]," that "defendants knowingly [and] willfully condone [ ] racial discrimination practices," and that "defendants [did not] exercise their supervisory responsibility and prevent the erroneous lockdowns . . . ." Id., ¶¶ 24, 25, 27.
Plaintiff also includes copies of the administrative appeal he filed after implementation of this modified program. In the appeal, plaintiff requested that "prison officials here at CSPSolano 'cease and desist immediately' race based lockdowns and manage[ ] inmates based upon individual behavior and not perceived ethnicity . . . ." Id., Ex. H. At the first level of review, Lieutenant Rogers interviewed plaintiff and Associate Warden Singh responded by partially granting the appeal. Id. Plaintiff alleges that Rogers claimed "he did not have to obey any court order and that he [would] not desist and cease racial based lock downs." Id., ¶ 21. At the second level of review, Warden Swarthout responded, stating that "Appellant's request to have the policy of locking down Inmates because of the color of their skin discontinued is denied." Id., Ex. H. The response to plaintiff's appeal at the Director's level of review informed plaintiff that his appeal was denied. Id. It also acknowledged "that the CDCR policy is that when there is an incident involving any race, all inmates of that race are locked up." Id.
Plaintiff also alleges that on December 24, 2009, there was an incident involving twelve Asian inmates and one black inmate. He alleges it was known by the next day that no other black inmate was involved in the incident, yet "CSP-Solano Administration kept all black and Asian inmates on lock down for approximately 10 extra[ ] days, and only release[d] them to chow and medication . . . ." Id., ¶16. Plaintiff identifies Captain Fox, Lieutenant Rogers, Captain Kesterson, and Wardens Swarthout and Haviland, as those who made the decision to keep black inmates on lockdown for ten additional days. Id., ¶ 18. Attached to the complaint is a copy of the Program Status Report, prepared by Lieutenant Torres and signed by Warden Swarthout, reflecting a December 30, 2009 update to the plan of operation for this modified program. Id., Ex. F. It indicates that Warden Swarthout "approved the modified program of all Black and Asian/Other inmates effective 12/24/2009." Id.
Plaintiff alleges Swarthout, Rogers, Kesterson, Sisto and Torres "wrongfully employed racially discriminatory lockdown practices . . . ." Id., ¶ 27. He also states that Swarthout "and his administration" at CSP-Solano, "ethnically discriminate" against plaintiff through race based lookdowns, and that the administration has a policy of imposing a "segregated atmosphere with loss of all rights and/or privileges for [an indeterminate] amount of time . . ." Id., Ex. I at ¶¶ 2, 9. According to plaintiff, "CSP-Solano Administrators" have "a pattern of systematic racial based lock downs even when the emergency has been defused," and "defendants [have] refused to adhere to [a] court order" that they cease and desist immediately race based lockdowns. Id., ¶¶ 14-16.
In their motions to dismiss, defendants argue that plaintiff failed to exhaust his administrative remedies as to his challenge to the December 2009 modified program and that plaintiff's remaining allegations fail to state a claim upon which relief may be granted. See Dckt. Nos. 32, 42, 52.
II. Exhaustion Under The PLRA
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions [under section 1983 of this title] until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Prison conditions" subject to the exhaustion requirement have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prison . . . ." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint, but need only provide the level of detail required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case").
Prisoners who file grievances must use a form provided by the California Department of Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline the action requested. The grievance process, as defined by California regulations, has three levels of review to address an inmate's claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, § 3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Id. § 3084.1(b).
Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be "available," there must be the "possibility of some relief. . . ." Booth, 532 U.S. at 738. Relying on Booth, the Ninth Circuit has held:
[A] prisoner need not press on to exhaust further levels of review once he has received all "available" remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.
Although a motion to dismiss for failure to exhaust administrative remedies prior to filing suit is normally brought under Rule 12(b) of the Federal Rules of Civil Procedure, when ruling on such a motion requires the court to look beyond the pleadings in the context of disputed issues of fact the court must do so under "a procedure closely analogous to summary judgment." Wyatt v. Terhune, 315 F.3d 1108, 1119, n.14 (9th Cir. 2003). Because care must be taken not to resolve credibility on paper as it pertains to disputed issues of material fact, the undersigned applies the Rule 56 standards to exhaustion motions that require consideration of materials extrinsic to the complaint. See Chatman v. Felker, No. Civ. S-06-2912 LKK EFB, 2010 WL 3431806, at *2-3 (E.D. Cal. Aug. 31, 2010).
Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119. To bear this burden: a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case . . . . With regard ...