FINDINGS AND RECOMMENDATIONS
This case is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(17). See 28 U.S.C. § 636(b)(1). It proceeds on the second amended complaint filed by plaintiffs Mitchell, Abdullah, Trujillo, and Quezada ("plaintiffs"). The case was before the undersigned on January 11, 2012, for a hearing on defendants Cate, Kernan, McDonald, Giurbino, Tilton, Felker, Wright, Foulk, Vanderville, Owen, and Hellwig's ("defendants") motion to dismiss. Attorneys Damon McClain and Christopher Becker appeared at the hearing on behalf of defendants; attorneys Rebekah Evenson and Donald Spector appeared on behalf of plaintiffs. For the reasons set forth herein, it is recommended that the motion be granted in part and denied in part.
Plaintiffs are state prisoners proceeding through counsel in an action brought under 42 U.S.C. § 1983. In the second amended complaint, plaintiffs challenge allegedly race-based and excessively lengthy lockdowns in California prisons. Each of the four plaintiffs makes specific allegations regarding the lockdown conditions that he experienced. See generally Second Am. Compl. ("Dckt. No. 84"). Based on those allegations, discussed in more detail below, plaintiffs claim that defendants have violated plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment because they have "designed, implemented, and administered a policy and practice that causes Plaintiffs to be locked down based on race, and this policy and practice is not narrowly tailored to serve a compelling state interest." Id. ¶ 75. Plaintiffs also claim that defendants have violated their rights under the Eighth Amendment because their lockdown policy and practice "causes Plaintiffs to be locked down and deprived of basic human needs for excessive periods of time." Id. ¶ 82. Plaintiffs seek to enjoin the lockdown policy. Id. ¶¶ 74-87. Plaintiff Mitchell also seeks damages on his Eighth Amendment and Equal Protection claims, as well as his state law claims of negligence and negligent and intentional infliction of emotional distress.*fn1 Id. ¶¶ 88-105.
II. DEFENDANTS' MOTION TO DISMISS
Defendants move to dismiss some of plaintiffs' Eighth and Fourteenth Amendment claims under the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure ("Rule") for failure to exhaust available administrative remedies before filing suit as required by the Prison Litigation Reform Act (PLRA). Defendants also move to dismiss plaintiff Mitchell's state law claims, arguing that Mitchell (1) failed to exhaust his administrative remedies as required by state law; (2) failed to comply with the California Government Claims Act; and (3) because defendants Tilton, Felker, Wright, Vanderville, Foulk, Owen and Hellwig have discretionary act immunity under California Government Code § 820.2. See generally Mot. to Dism. ("Dckt. No. 92-1").
A. Exhaustion of Eighth and Fourteenth Amendment Claims
First, defendants contend that plaintiffs Mitchell, Abdullah, and Trujillo did not exhaust their Eighth Amendment claims because their inmate appeals did not describe or even mention the alleged conditions giving rise to their Eighth Amendment claims. Dckt. No. 92-1 at 7-11. Second, defendants argue that none of the plaintiffs exhausted their equal protection or Eighth Amendment claims that are based on lockdowns for which they never filed administrative appeals.*fn2 Id. at 12-14.
1. Exhaustion Under the PLRA
The 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"). "[A] grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009).
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 to the latter category of evidence, information provided [to] the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, "available." Brown, 422 F.3dat 936-37 (citations omitted).
In the second amended complaint, plaintiffs identify and attach copies of the four inmate appeals through which they claim to have exhausted available administrative remedies pursuant to the PLRA. Dckt. No. 84 ¶¶ 52, 58, 66, 73, Apps. A-D. In support of their motion, defendants also submit copies of the four inmate appeals, along with the declaration of D. Foston, Chief of the Office of Appeals for the California Department of Corrections and Rehabilitation (CDCR). Foston Decl. ("Dckt. No. 93"), Exs. A-D. At the hearing, the parties confirmed that the record before the court consists of all inmate appeals relevant to the question of exhaustion.
a. Plaintiff Mitchell's § 1983 Claims Based on Lockdowns On or After September 12, 2006 Are Exhausted Plaintiff Mitchell alleges that between May 2006 and December 2007, High Desert State Prison imposed an overlapping series of lockdowns on him and other prisoners identified as "Black." Dckt. No. 84¶ 50. He claims that he had been under doctor's orders to ambulate and exercise regularly and that the lockdowns prevented him from exercising as required. Id. ¶ 51.
He also alleges that the lockdowns exacerbated a leg injury, and caused him various physical and psychological problems. Id. ¶¶ 51, 91. Mitchell claims that he was subjected to additional race-based lockdowns at Folsom State Prison in July, August, September, October, and November 2010. Id. ¶ 53.
In his administrative appeal, Mitchell identified his problem as "High Desert's Segregation Lockdown Policy." Dckt. No. 93, Ex. A at 3. He complained that since "9-12-06," he had "been confined to [his] cell on 'CTQ' 24hrs a day 7 days a week, for something [he] had no knowledge of and nothing to do with." Id. As relief, Mitchell requested that High Desert end its policy of locking down "an entire race of inmates" and "to be taken off of this lockdown." Id. In expressing his dissatisfaction with the review of his appeal at the first level, Mitchell stated, "I am still on forced racial lockdown and being denied program, i.e., yard, dayroom, canteen, [and] packages, while other races, whites, Hispanics and Asians are allowed to continue programming [and] I am still being locked in my cell 24/7." Id. at 4. In expressing his dissatisfaction with the review of his appeal at the ...