The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING (1) DEFENDANTS' MOTIONS TO DISMISS BE GRANTED IN PART AND DENIED IN PART, AND (2) THIS ACTION BE DISMISSED, WITH PREJUDICE, AS BARRED BY THE STATUTE OF LIMITATIONS (Docs. 29, 43, and 44) THIRTY-DAY OBJECTION PERIOD
Findings and Recommendations on Defendants' Motions to Dismiss
Plaintiff Everett Galindo Gonzalez, a state prisoner proceeding pro se and in forma pauperis, filed in this civil rights action pursuant to 42 U.S.C. § 1983 on July 23, 2009. Pursuant to the third screening order filed on March 12, 2012, this action for damages is proceeding on Plaintiff's third amended complaint against Defendants Fisher, Giacomi, Norton, Watson, Dotson, Ruff, Roman, Speer, Gardemal, Lunes, Rodriguez, and Espinosa (1) for revalidating Plaintiff in 2004 and then again in 2006, and (2) rejecting him for inactive gang status and revalidating him in 2006/2007, all without notice, a meaningful opportunity to be heard, and the existence of some evidence with an indicia of reliability, in violation of the Due Process Clause.*fn1 (Doc. 21, 3rd Amend. Comp.; Doc. 22, 3rd Screening Order, 10:25-11:4.) This action is also proceeding on Plaintiff's claim that Defendants Lunes and Giacomi retaliated against him for filing inmate appeals by failing to submit Plaintiff's inactive gang status packet to OCS (Office of Correctional Safety) and by transferring Plaintiff to a different yard, in violation of the First Amendment. (3rd Amend. Comp.; 3rd Screening Order, 11:18-22.)
Pending before the Court are Defendants' three motions to dismiss.*fn2 On July 9, 2012, Defendants Espinosa, Fisher, Giacomi, Ruff, Rodriguez, Roman, Speer, and Watson filed a motion to dismiss. (Doc. 29.) Plaintiff filed an opposition on October 12, 2012,*fn3 and Defendants filed a reply on October 19, 2012. (Docs. 40, 42.)
On October 25, 2012, Defendants Gardemal, Lunes, and Norton filed a motion to dismiss, and on November 7, 2012, Defendant Dotson filed a motion to dismiss. (Docs. 43, 44.) After obtaining two extensions of time, Plaintiff filed his oppositions to the motions on February 11, 2013, and Defendants filed their reply on February 19, 2013. (Doc. 53-55.)
Defendants move for dismissal of the claims against them on the grounds that Plaintiff failed to exhaust the available administrative remedies, 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b), and that Plaintiff fails to state claims upon which relief may be granted and his claims are barred by the statute of limitations, Fed. R. Civ. P. 12(b)(6). The motions have been submitted upon the record without oral argument pursuant to Local Rule 230(l); and for the reasons set forth below, the Court recommends that Defendants' motions to dismiss be granted in part and denied in part, and this action be dismissed, with prejudice, on the ground that it is barred by the statute of limitations.
Pursuant to the Prison Litigation Reform Act of 1996, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).
The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under which the defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust is subject to an unenumerated Rule 12(b) motion, and in resolving the motion, the Court may look beyond the pleadings and decide disputed issues of fact. Stratton, 697 F.3d at 1008; Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010); Wyatt, 315 F.3d at 1119-20. If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
B. Failure to State a Claim
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted), cert. denied, 132 S.Ct. 1762 (2012). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007), cert. denied, 553 U.S. 1031 (2008); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
However, courts may properly consider matters subject to judicial notice and documents incorporated by reference in the pleading without converting the motion to dismiss to one for summary judgment. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Under the doctrine of incorporation by reference, a court may consider a document provided by the defendant which was not attached to the pleading if the plaintiff refers to the document extensively or if it forms the basis of the plaintiff's claim. Ritchie, 342 F.3d at 908; also Daniels-Hall, 629 F.3d at 998.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well-pleaded factual allegations as true and draw all reasonable inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Huynh, 465 F.3d at 996-97; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, prisoners proceeding pro se are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
Further, "[a] claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when 'the running of the statute is apparent on the face of the complaint.'" Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh, 465 F.3d at 997), cert. denied, 131 S.Ct. 3055 (2011). "'A complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.'" Von Saher, 592 F.3d at 969 (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)).
Plaintiff's retaliation claims against Defendants Lunes and Giacomi arise out of the events in 2006. Plaintiff alleges that on May 8, 2006, Defendant Lunes warned him that because of his inmate appeals, he was not going to "get away" like other inmates and Defendant Lunes thereafter failed to submit Plaintiff's packet to OCS for inactive gang status approval. (3rd Amend. Comp., ¶39.) Plaintiff also alleges that on August 4, 2006, Defendants Lunes and Giacomi told him to "stop sweating them" about his status ...