ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This action is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(17). See 28 U.S.C. § 636(b)(1). Presently before the court are defendants Virga, Brandon, Villasenor, and Parker's ("defendants") motion to dismiss (Docket No. 18), plaintiff's motion for a preliminary injunction (Docket No. 20), and plaintiff's motion for in camera review (Docket No. 25). For the reasons stated below, the undersigned recommends that the complaint be dismissed with leave to amend, and that plaintiff's motion for a preliminary injunction be denied. In addition, the undersigned denies plaintiff's motion for in camera review.
This action proceeds on plaintiff's August 23, 2010 amended complaint against defendants Virga, Brandon, Villasenor, and Parker. Dckt. No. 11. The complaint and the attached exhibits reveal the following:*fn1
On December 4, 2004, a correctional officer found handwritten notes pertaining to Northern Structure gang activity in Baker's fecal matter. (ECF 11 at 5:11-13; 29.) Because of this finding, Baker was placed in administrative segregation, but released a few days later on December 7, 2004. (Id. at 5:26-28, 29.) Baker alleges Defendants Parker and Villasenor "split up and used" the notes to validate Baker. (Id. at 5:23-25.)
On May 17, 2006, Parker wrote a 128-B chrono stating that an investigation had been conducted and sufficient evidence discovered to identify Baker as an associate of the Northern Structure (NS) prison gang. (Id. at 17.) Parker listed the following evidence:
1.) (Informant) a confidential memorandum dated April 20, 2006, authored by Officer C. Villasenor identified BAKER holding the NS appointed position of Block Channel (BC). The BC responsibilities were identified as enforcing NS rules and regulations within their assigned housing unit. BAKER was later promoted from the BC to a Northern Teacher (NT). The NT was identified as responsible for educating NS associates on the gang history, bonds, and the overall function of the NS.
2.) (Direct Link/Written Material) a confidential CDC 128 B dated April 14, 2006, authored by Officer G. Parker identified BAKER to be in possession of several mini notes relevant to the NS prison gang. Additionally, one of the mini notes in BAKER's possession contained instructions from inmate JAM, Carlos (K-60716) aka "Chino" from Sacramento, a validated NS member housed at Pelican Bay State Prison (PBSP).
3.) (Informant) a confidential memorandum dated June 3, 2005, authored by Officer G. Parker identified BAKER holding the NS appointed position of Yard Security (YS). The YS position was identified as responsible for supplying and securing weaponry for the NS prison gang.
4.) (Informant) a confidential memorandum dated January 10, 2005, authored by Officer D. Shaver identified BAKER as the overall for the NS within his housing unit. BAKER was identified as attempting to establish a household in an adjacent building as well. The term household was identified as NS members/associates functioning under the gang policies and rules.
5.) (Supporting Document) a confidential memorandum dated December 7, 2004, authored by Officer C. Villasenor identified BAKER secreting NS mini notes in his rectal area. Secreting the mini notes in the anal cavity was described as a NS policy. BAKER was placed on body cavity surveillance and defecated several NS mini notes on December 6, 2004. (Id. at 17.)
Parker's 128-B stated that the evidence would be "forwarded to the LEIU for consideration in acceptance of the validation of Baker as an associate of the NS prison gang." (Id.)
Ruff, Speer and Buechner (who are not defendants in this action) validated Baker as an associate of the NS prison gang on June 14, 2006. (Id. at 62.)
Baker alleges that on July 15, 2007, he was give an indeterminate SHU term based on the validation and refers to exhibit "K". (Id. at 6:13-15.) This exhibit shows that Baker had "received 72 hour notice" [and] was given an opportunity to be heard. (Id. at 61.) Moreover, Baker had been "adjudicated and found guilty of battery on an [inmate] with a weapon resulting in serious injury." (Id. at 61:10-12.) The Complaint's exhibits show that Baker's SHU placement was given periodic review. (Id. at 45, 57, 61, 66.) Defendant Virga was a member to the Institution Classification Committee (ICC) who reviewed Baker's SHU placement on July 14, 2010; . . . after Baker filed his original complaint . . . . (ECF 1; 11 at 8, 66.) Baker alleges that during the review, Baker addressed "his illegal indeterminate SHU housing but was only told to appeal it." (Id. at 8.)
Dckt. No. 18 at 1-3. Plaintiff alleges the following claims for relief in his amended complaint:
(1) a Fourteenth Amendment due process violation because plaintiff's administrative appeal was reviewed by defendant Brandon, who allegedly participated in the event or decision being appealed; (2) a Fourteenth Amendment due process violation based on defendants Parker and Villasenor's allegedly improper use of the December 4, 2004 handwritten notes to validate plaintiff as a gang member; and (3) Fourteenth Amendment due process and Eighth Amendment violations for holding plaintiff in the Security Housing Unit ("SHU") since July 15, 2007. See Dckt. No. 11.
II. Defendants' Motion to Dismiss
Defendants Virga, Brandon, Villasenor, and Parker move to dismiss the complaint for failure to state a claim and for failure to exhaust administrative remedies pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(6) and 12(b). Defendants argue that plaintiff has not stated claims for violation of the Eighth or Fourteenth Amendments. Defendants further argue that plaintiff's claims against Brandon and Virga should be dismissed because plaintiff failed to exhaust administrative remedies for those claims prior to filing suit. See Dckt. No. 18.
The exhaustion issue is addressed first, as exhaustion it is a prerequisite to filing suit. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted."); see also McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring dismissal where prisoner fails to exhaust administrative remedies before filing suit and tries to do so while case is pending).
A. Exhaustion of Claims Against Defendants Brandon and Virga
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).
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 ...