The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner at California State Prison-Sacramento ("CSP-SAC"), proceeding without counsel, with a civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and moves for a preliminary injunction. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1), and Local Rule 302. For the reasons that follow, the undersigned finds that plaintiff failed to exhaust his administrative remedies on each of his claims, and therefore recommends dismissal of this action in its entirety.
I. In Forma Pauperis Application
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
II. Screening of Complaint
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b)(1),(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Pursuant to the initial screening of a complaint under 28 U.S.C. § 1915A, a court may dismiss an action for failure to exhaust administrative remedies. See Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002) (affirming district court's sua sponte dismissal of prisoner's complaint because he failed to exhaust his administrative remedies). Thereafter, failure to exhaust is an affirmative defense that must be raised and proved by the defendant. Wyatt v. Terhune, 315 F.3d 1108, 1112 (9th Cir. 2003).
B. Plaintiff's Allegations
The operative complaint herein (plaintiff's First Amended Complaint, filed June 27, 2012 (Dkt. No. 5)), challenges several aspects of plaintiff's incarceration at CSP-SAC, alleging discrimination on the basis of disability and, pursuant to different circumstances, on the basis of race; alleged denial of plaintiff's right to file prison grievances and to access the courts; and alleged cruel and unusual punishment. The complaint names as defendants the California Department of Corrections and Rehabilitation ("CDCR"); CDCR Director of Adult Institutions
S. Hubbard; CSP-SAC Warden T. Virga; Correctional Sergeant C. Haring; Correctional Lieutenant A. Konrad; Correction Captains S. Shannon, D. Deroco and J. Clough; and Appeals Coordinators K.A. Daly, C. Burnett and B. Donahue.
Plaintiff's incarceration at CSP-SAC commenced on April 22, 2011. (Cmplt. ¶
2.) The complaint alleges that plaintiff was initially housed in CSP-SAC's Facility C, Building 5, as the sole occupant in Cell No. 104, because his cellmate had been moved to administrative segregation ("ad seg"). Plaintiff states that this placement met his medical needs, including the requirement of a lower bunk due to his knee disability, and separation from other inmates due to his mental disability. However, on September 22, 2011, Correctional Officer ("CO") Williams (not a defendant) moved plaintiff to Building 7, Cell No. 102. The beds in plaintiff's new cell were "side-by-side," rather than in bunk formation (plaintiff also refers to the side-by-side arrangement as a "modified cell"), which plaintiff states "would become a significant hardship to him because of his Schizophrenia/Paranoia disorder." (Id. ¶ 24.)
The complaint alleges that plaintiff attempted to submit a grievance on September 25, 2011, pursuant to a CDCR Form 1824, challenging his housing placement in Building 7's "modified' side by side cells," asserting that his prior placement in Building 5 had adequately met his need for physical accommodations, i.e. a low bunk in a lower tier cell. (Id. ¶¶ 8-10; Exh. A.) The complaint alleges that, on September 28, 2011, plaintiff "made a good faith effort to obtain administrative aid from facility's Sergeant, C. Harings,"*fn1 who informed plaintiff that, due to his physical disability, the administration was authorized to move plaintiff. Plaintiff states that, "[w]ithout disputing Haring's contentions," he nevertheless sought a return to his prior housing. Haring reportedly became "extremely boisterous, irrate and argumentative. . . ." (Id. ¶ 27.) In response, plaintiff requested that Haring move plaintiff to ad seg "because he could not live under these dire dire (sic) conditions." (Id. ¶ 28.) Thereafter, Lieutenant Konrad, who apparently heard the conversation, confirmed with plaintiff that he had requested placement in ad seg, then directed Haring to place plaintiff into "the cage." (Id. ¶ 30.)
The complaint alleges that once plaintiff was secured in the cage, "Haring admonished plaintiff that his attempt to escape being placed into the facility's modified cell, by going to ad seg, would fail. Because once plaintiff return[ed], Haring would make sure that he would be placed RIGHT-BACK-INTO the modified cell. Then after Harings retreated from the cage, plaintiff admonished Harings that his disability inhibits him from standing for a long period of time, but was ignored." (Id. ¶ 31 (original emphasis).)
Allegedly, seven hours later, "plaintiff was still secured inside this small/cramp[ed] cage," and began to experience significant pain in his right knee. (Id. ¶ 32.) A nurse responded to plaintiff's complaints, observed "a considerable amount of swell[ing]" to plaintiff's knee, and secured a move of plaintiff to a larger cage. (Id. ¶ 33.) Plaintiff was thereafter placed in ad seg until approximately October 1, 2011. Two weeks after his release from ad seg, plaintiff was treated by a physician who prescribed ibuprofen to relieve plaintiff's knee pain.
Meanwhile, on September 29, 2011, while plaintiff was still in ad seg, he was allegedly approached by Facility C Captain Shannon, who informed plaintiff that he was being released back to Facility C; Shannon allegedly sent an escort to move plaintiff to Building 7, Cell No. 101, a "side-by-side" cell, which was allegedly shared with a known homosexual who was "possibly 'HIV' positive." (Id. ¶ 36.) Plaintiff declined the move, and was issued another lockup order and retained in ad seg. Plaintiff alleges that, thereafter, he was "truly affected by Harings' arbitrary and capricious actions and began to feel 'suicidal.'" (Id. ¶ 37.) Plaintiff states that he was placed on suicide watch, and refused to eat or drink for three days. (Id.)
The complaint alleges that a "CSP-SAC Mental Health Physician had intervened and made a recommendation to the prison administration officials to exclude plaintiff from the facility's modified cell. The physician[']s request came with specific warnings about the effect such cell could have on plaintiff but such request was ignored." (Id. ¶ 38.) (Plaintiff references this recommendation as ...