The opinion of the court was delivered by: Hon. Irma E. Gonzalez United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P.12(b) AND 12(b)(6) [ECF No. 8] MOTION TO DISMISS
Denzil H. Lino ("Plaintiff"), a prisoner currently incarcerated at California Men's Colony located in San Luis Obispo, California, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 1, 2012. Currently, Plaintiff is proceeding with his First Amended Complaint which was filed on April 13, 2012 [ECF No. 4.] Defendant has filed a Motion to Dismiss pursuant to FED.R.CIV.P. 12(b)*fn1 and 12(b)(6). [ECF No. 8.]
Plaintiff has filed his Opposition, to which the Defendants have filed their Reply. [ECF Nos. 10, 12.] The Court has determined that Defendant's Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Peter Lewis is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).
In 2009, Plaintiff was housed at Centinela State Prison ("CEN") located in Imperial, California. (See FAC at 1.) On January 2, 2009, Plaintiff alleges that he filed an administrative grievance against Defendant Celaya, a correctional officer, for "confiscating [Plaintiff's] property and giving to other inmates." (Id. at 3.) The grievance was submitted to the Appeals Coordinator initially who then routed it back to Defendant Celaya with the instructions "please complete at informal level." (Id.) Plaintiff claims Defendant Celaya ignored these instructions and failed to respond to his grievance. (Id.)
A few weeks later, on January 30, 2009, Plaintiff alleges that "building officers searched and ransacked" his cell. (Id.) One of the officers in the search said to Plaintiff, after referring to the grievance Plaintiff had previously filed against Celaya, "what is the problem with you and Celaya?" (Id.) On February 8, 2009, an unnamed inmate came to Plaintiff's cell and told him to "drop the 602." (Id.) Three days later, Plaintiff was approached by four inmates who also "wanted [Plaintiff] to drop [his] 602." (Id.) One inmate said to Plaintiff "just pack your shit up man, roll your shit up and leave, do yourself a favor." (Id.) Plaintiff feared retaliation by these inmates so he allowed himself to be escorted by these inmates to Celaya's office. (Id.) Plaintiff then alleges that "Celaya placed the 602 on his desk and said 'sign it'." (Id.). Plaintiff signed the form which was then delivered to "Sergeant Carranza at the program office." (Id.)
Later, on March 15, 2009, Plaintiff was "interviewed by Lieutenant Gervin conducting [the] inquiry" into Plaintiff's grievance. (Id. at 5.) Plaintiff alleges Lieutenant Gervin stated that "might not find sufficient evidence for a misconduct" and he would "just type something up, make it look nice and pretty," as Gervin claims, "Celaya didn't mean any harm." (Id.) Gervin then indicated that he would "partially grant" Plaintiff's grievance and grant Celaya "two days furlough." (Id.) On April 29, 2009, Plaintiff received the written response to his grievance which was "partially granted." (Id. at 5-6.) Plaintiff appealed and the next level of review also "partially granted" Plaintiff's grievance without any further clarification for the grounds of a "partial grant." (Id. at 6.) On September 30, 2009, Plaintiff received the response from the Director's Level of review denying his claim for relief. (Id.)
III. DEFENDANTS'MOTION TO DISMISSPURSUANT TO FED.R.CIV.P. 12(b)
As a preliminary matter, the Court will first consider Defendant's argument that the state law claims against him in Plaintiff's First Amended Complaint should be dismissed for failing to exhaust available administrative remedies pursuant to FED.R.CIV.P. 12(b). (See Def.'s Not. of MTD at 2.)
Defendant Celaya states "a non-enumerated motion to dismiss under Federal Rule of Civil Procedure 12(b) is the proper pretrial motion for establishing nonexhaustion of administrative remedies under 42 U.S.C. § 1997e(a)." (Def.'s Memo of Ps&As in Supp. of MTD at 4.) However, § 1997e applies only to actions "brought with respect to prison conditions under section 1983 of this title, or any other Federal law." 42 U.S.C. § 1997e(a). Defendant is seeking dismissal of state law claims and thus, § 1997e is not applicable to these claims. Nowhere in Defendant's Motion does he argue that Plaintiff did not adequately exhaust his administrative remedies as they relate to his federal claims. Accordingly, the Court will consider whether Plaintiff has adequately plead the requirements of California Tort Claims Act ("CTCA") to bring pendent state law claims in this action.
When defendants are public employees acting within the scope of their employment, as the Defendant named in this action is alleged to be, a plaintiff must first submit a written claim to the public entity that employs them before filing a lawsuit seeking monetary damages for violations of California law. CAL. GOV'T CODE §§ 945.4, 950.2. Under California law, these claims procedures apply to prisoners. See CAL. GOV'T CODE § 945.6(c). The prisoner must file his tort claim with the governmental entity as a condition precedent to the maintenance of an action under state law, even if it arises as a pendent claim in a civil rights suit filed in federal court under 42 U.S.C. § 1983. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). The complaint must allege compliance with the claims procedure, and failure to make this allegation provides a basis for dismissal. Id.
However, in reviewing Plaintiff's Opposition he states that his state law "allegations of conversion and assault are not the basis for his claims, Plaintiff's claims rest on his constitutional rights." (See Pl.'s Opp'n at 9.) Because it appears that Plaintiff did not intend to bring any causes of action under California state law, the Court will GRANT Defendant's Motion to Dismiss these claims. If Plaintiff later seeks to file an Amended Complaint to add state law tort claims, his pleadings, as stated above, must allege ...