The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISREGARDING PLAINTIFF'S MOTION FOR JUDICIAL NOTICE (DOC.81) ORDER GRANTING DEFENDANTS ROUSSEAU'S MOTION TO DISMISS / (DOC. 77)
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 on Plaintiff's Fourth Amended Complaint against Defendants R. Chavez, A. Diaz, M. Lopez, P. Maldonado, T. Norton, and S. Rousseau for retaliation in violation of the First Amendment. Pending before the Court is Defendants' motion to dismiss, filed April 2, 2012, pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure, for Plaintiff's failure to exhaust administrative remedies as to Defendants Rousseau, Chavez, and Norton. Defs.' Mot. Dismiss, Doc. 77. Plaintiff filed an opposition on April 23, 2012. Docs. 80, 81, 82.*fn1
On April 30, 2012, Defendants filed their reply. Doc. 83. The matter is submitted pursuant to Local Rule 230(l).
II. Summary Of Fourth Amended Complaint
In January of 2008, Plaintiff was placed and retained in CSP-Cor ad seg. Fourth Am. Compl. ¶ 13. 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.
In March 2009, Plaintiff was relocated from ad seg to 4A Security Housing Unit ("SHU"). Id. ¶ 30. In December 2009, CSP ICC 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.
III. Exhaustion Of Administrative Remedies
Pursuant to the Prison Litigation Reform Act of 1995, "[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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt, 315 F.3d at 1119. The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed ...