The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS (1) DENYING PLAINTIFF'S REQUESTS FOR COUNSEL AND LEAVE TO AMEND, and (2) GRANTING DEFENDANTS' MOTION TO DISMISS THIS ACTION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF Nos. 49, 55) OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS
Plaintiff Carlos D. Gabarrete, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on February 25, 2011 pursuant to 42 U.S.C. § 1983. (ECF No. 1.) This matter proceeds on Plaintiff's Fourth Amended Complaint claims against Corcoran State Prison ("CSP") Defendants Hazel, Medina, Prudhel, Navarro, Esquivel, G. Hernandez and F. Hernandez for excessive force, failure to protect, and medical indifference in violation of the Eighth Amendment. (ECF No. 37.)
Defendants filed a Motion to Dismiss the action on January 7, 2013 (ECF No. 49) pursuant to Fed. R. Civ. P. 12(b). Therein Defendants notified Plaintiff of his rights, obligations and methods for opposing the Motion to Dismiss pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). Plaintiff filed a Response to the Motion on February 19, 2013, including therein unnoticed requests for appointment of counsel and leave to amend to add unspecified claims not exhausted at the time the original complaint was filed. (ECF No. 55). Defendants filed a Reply on February 25, 2013. (ECF No. 56.)
The matter is now ready for ruling pursuant to Local Rule 230(l).
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). In resolving a 12(b)(6) motion, the 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); 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).
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 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 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.
Defendants move for dismissal on grounds (1) Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act ("PLRA") prior to filing this action, (2) Plaintiff fails to state a claim for deliberate medical indifference, (3) Plaintiff is barred from claiming excessive force because he contests a rule violation conviction that lengthened his sentence such that his remedy must be pursued under 28 U.S.C. § 2254. Heck v. Humphrey, 512 U.S. 477 (1994); Edwards v. Balisok, 520 U.S. 641 (1997).
a. Excessive Force and Failure to Protect
Plaintiff filed one appeal arising from the May 28, 2010 use of force, Appeal No. COR-10-1780 (the "Appeal"). (Campbell Decl. Ex. B.) This Appeal, treated as a staff complaint, did not find evidence of excessive force or violation of California Department of Corrections and Rehabilitation ("CDCR") policy at the second level. (Id.) The second level Appeal response was returned to Plaintiff by prison mail on July 27, 2010, and was available in his C-File. The Appeal informed Plaintiff of his right to seek review at the third level, and to provide justification for any late submission to the third level.
Plaintiff did not submit the Appeal to the third level. (Lozano Decl. ¶ 8.) Nothing suggests he was prevented from doing so.
Plaintiff failed to exhaust his May 28, 2010 excessive force and failure to protect claims.
Plaintiff did not file any appeal arising from Defendants' alleged May 28, 2010 denial of medical care. Zamora Decl. ¶ 5. He did file health care appeals seeking treatment from medical staff (not Defendants) for his May 28, 2010 injuries. However these health care appeals were untimely and in any event did not exhaust ...