ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion to dismiss. Plaintiff opposes the motion. Also before the court is plaintiff's motion for default. On review of the motions, the pleadings filed in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
ALLEGATIONS IN THE COMPLAINT
A. The Disciplinary Hearing
On January 21, 2011, plaintiff, who is presently serving a 72-year sentence, was issued a Rules Violation Report ("RVR"), Log. No. 02-J-0211-044, charging him with distribution of a controlled substance, and placed in the solitary housing unit ("SHU") of California Correctional Facility in Vacaville, California pending a hearing on the distribution charge. Doc. No. 4 at 9, 15, 32.*fn1
On April 1, 2011, non-party Lt. Walker initiated a disciplinary hearing regarding plaintiff's distribution charge and was immediately informed by plaintiff's staff assistant that the "Investigative Employee's Report" ("IE Report") underlying the RVR was invalid. Doc. No. 4 at 18. Lt. Walker postponed the hearing pending the filing of a revised IE Report. Id.
The next day, on April 2, 2011, defendant Lt. A. Torres initiated a second disciplinary hearing regarding plaintiff's distribution charge. At the beginning of the hearing, Lt. Torres -- like Lt. Walker the day before -- was informed that the IE Report was invalid and that the first hearing was postponed pending the filing of a revised IE Report. Lt. Torres decided to proceed with the disciplinary hearing without a corrected IE Report based on time limitations and plaintiff's purported desire to not postpone the proceeding any further. Plaintiff's staff assistant was not present during this April 2, 2011 disciplinary hearing. At the conclusion of this hearing, Lt. Torres found plaintiff guilty of the distribution charge.
On May 17, 2011, plaintiff appeared before the Institution Classification Committee ("ICC") for sentencing on the distribution charge and was assessed a six-month mitigated term in the SHU, with the remainder of the term suspended. See Doc. No. 4 at 15, 20.
In total, plaintiff was housed in SHU from January 24, 2011 to May 17, 2011. Directly related to Lt. Torres's decision to proceed with the April 2, 2011 disciplinary hearing, plaintiff was housed in SHU for a total of 45 days, from the April 2, 2011 disciplinary hearing to the date of the ICC Hearing, when he was released from SHU.
B. Appeal Log No. CMF-11-00552
Following the ICC hearing, plaintiff filed an appeal alleging due process violations with respect to the April 2, 2011 disciplinary hearing over which Lt. Torres presided. See Doc. No. 4 at 33-36. Specifically, plaintiff claimed Lt. Torres improperly conducted the hearing despite being aware of an incorrect IE Report and despite the absence of a staff assistant.
On June 14, 2011, plaintiff's appeal, which was bypassed to the second level of review because it concerned a serious rules violation, was partially granted upon concluding that Lt. Torres improperly conducted the hearing without a staff assistant present. See Doc. No. 4 at 33-34. Plaintiff's conviction was vacated and he was granted a re-hearing. Id.
C. The July 28, 2011 Disciplinary Re-Hearing
At the July 28, 2011 disciplinary re-hearing, plaintiff's charge was reduced to possession of a controlled substance, a charge that did not warrant a SHU term. Doc. No. 4 at 20. The notes of this re-hearing reflect that "[a]lthough previous ICC of 5/17/11 was correct to assess the SHU term, the re-hearing renders their SHU term assessment invalid." Id.
D. Appeal Log No. CMF-11-01034
On August 25, 2011, plaintiff filed an appeal seeking restoration of any assessed good time credits and the SHU term, as well as compensation for each hour he was forced to serve in SHU due to Lt. Torres's finding of guilt on the distribution charge. See Doc. No. 4 at 22-25.
Plaintiff's appeal was initially rejected on August 26, 2011, and then granted in part at the first level of review on September 23, 2011. See Doc. No. 4 at 22, 26-28. It was determined that a modification order would issue to have plaintiff's claims as to the SHU term assessment reviewed by the ICC. In all other respects, plaintiff's appeal was denied.
On September 29, 2011, plaintiff appealed to the second level of review. Doc. No. 4 at 23. Plaintiff's appeal was ...