The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED (Doc. 53.) OBJECTIONS, IF ANY, DUE IN THIRTY (30) DAYS
Bernard C. Hughes ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 29, 2009. (Doc. 1.) This case now proceeds on Plaintiff's Third Amended Complaint, filed on November 28, 2011, against defendants Lieutenant Susan Brent, Sergeant Robert Bruner, and Deputy Sheriff Ron Beverage (collectively "Defendants") for deprivation of outdoor exercise in violation of the Eighth Amendment. (Doc. 49.)
On February 24, 2012, Defendants filed a motion to dismiss for failure to exhaust administrative remedies. (Doc. 53.) On March 19, 2012, Plaintiff filed an opposition to the motion.*fn1
(Doc. 55.) On March 23, 2012, Defendants filed a reply to Plaintiff's opposition. (Doc. 56.) Defendants' motion to dismiss is now before the Court.
II. PLAINTIFF'S ALLEGATIONS
Plaintiff is a state prisoner presently incarcerated at Kern Valley State Prison in Delano, California. The events at issue in this action allegedly occurred at the Mariposa County Jail in Mariposa, California, when Plaintiff was detained there as a pretrial detainee. Plaintiff names as defendants Lieutenant Susan Brent, Sergeant Robert Bruner, and Deputy Sheriff Ron Beverage.
Plaintiff alleges as follows in the Third Amended Complaint. Defendant Beverage falsified a disciplinary report against Plaintiff, resulting in Plaintiff's isolation for forty-five days. After ten days, Plaintiff asked defendant Beverage for access to the exercise yard, and Beverage stated, "No." 3ACP, Doc. 49 at 4 ¶IV. Plaintiff handed a grievance to Beverage, for processing, concerning the denial of his request for outdoor exercise. Five days later, Plaintiff asked Beverage what happened to his appeal. Beverage said it went to the same place as Plaintiff's confiscated property, referring to when Beverage confiscated Plaintiff's personal property and threw it in the trash on January 30, 2009.
Plaintiff then spoke to defendant Bruner, defendant Beverage's immediate supervisor, about his appeal and yard privileges. Bruner told Plaintiff he would speak to his supervisor, defendant Brent. A week later, Plaintiff asked defendant Bruner for access to the yard, which Bruner denied. When Plaintiff asked about his appeal, Bruner informed him that according to Lt. Brent, it was too late to appeal defendant Beverage's action because five days had expired. Plaintiff stated that he was grieving his deprivation of exercise on the yard, not defendant Beverage's action, and Bruner replied, "Same thing." 3ACP at 5.
Defendant Brent authorized Plaintiff's disciplinary isolation for forty-five consecutive days without access to exercise. Plaintiff was not given a review by health care staff or documentation of a review, as required under Title 15.
Both defendants Beverage and Bruner later sought early retirement after illegal conduct while working as officers at the jail.
Plaintiff requests "any relief [the] Court deems necessary." 3ACP at 4 ¶5.
III. MOTION TO DISMISS FOR FAILURE ...