The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT ORTIZ'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED, WITHOUT PREJUDICE (Doc. 89.) OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
Jeffrey Kevin Gomez (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 January 21, 2004 at the United States District Court for the Northern District of California. (Doc. 1.) The case was subsequently transferred to the Eastern District of California on March 29, 2004. (Id.) This action now proceeds with Plaintiff's Fourth Amended Complaint filed on August 14, 2009, against defendant Acting Chief Deputy Warden D.D. Ortiz (Defendant) for retaliation in violation of the First Amendment. (Doc. 46.)
On August 20, 2012, Defendant filed a motion for summary judgment and a motion to dismiss for failure to exhaust administrative remedies.*fn1 (Doc. 89.) On October 15, 2012, Plaintiff filed an opposition to the motion. (Doc. 96.) On October 22, 2012, Defendant filed a reply to the opposition.*fn2 (Doc. 96.) Defendant's motion for summary judgment and motion to dismiss are now before the Court.
II. PLAINTIFF'S ALLEGATIONS AND CLAIMS*fn3
On January 9, 2003, Plaintiff was transferred from Salinas Valley State Prison (SVSP) to Corcoran State Prison (CSP) and housed in facility/building 4B-4L which is designated for validated gang affiliates. On January 16, 2003, Plaintiff attended a classification hearing, and a decision was made to retain him in the Security Housing Unit (SHU) because his file labeled him as a member of the Aryan Brotherhood gang.
On February 18, 2003, after receiving information from the Gang Investigator at SVSP, CDCR Headquarters validated Plaintiff in writing as an Ainactive@ gang associate. Plaintiff maintains that the Ainactive@ status entitled him to be released from the SHU into the General Population.
On March 11, 2003, defendants Schrednitz and Villareal issued a lock-up order retaining Plaintiff in the SHU, although they knew his Ainactive@ status had been confirmed. On March 13, 2003, Plaintiff attended a classification hearing and vehemently objected to the lock-up order, referring to the February 18, 2003 validation. Defendants D.D. Ortiz, Galaviz, Rings and Schrednitz recommended Plaintiff=s retention in the SHU. Defendant Galaviz said, AWelcome to Corcoran B 602 that.@ (4ACP, Doc. 46 at 17 ¶107.) Defendant Schrednitz told Plaintiff not to talk to Aanyone@ and ADon=t go to Yard,@ if he ever wanted to be released to the General Population. (Id.)
For months, Plaintiff gave notice to defendants of the February 18, 2003 validation of his Ainactive@ status, but they failed to release him from the SHU.
On May 13, 2003, three days before the expiration of his determinate SHU term for assault, Plaintiff was approved for retention in the Administrative Segregation Unit instead of the SHU. On May 22, 2003, defendants D.D. Ortiz, R. Hall, and Schrednitz agreed, out of retaliation, to retain Plaintiff in the SHU, falsely documenting that he was a validated gang associate.
On September 12, 2003, Plaintiff appeared before the Department Review Board. Defendant Kalvelage decided to retain Plaintiff in the SHU while an investigation was conducted, ignoring Plaintiff=s explanation that SVSP had already conducted a full investigation that could be verified by phone.
On September 24, 2003, defendants D.D. Ortiz, G. Rangel and Schrednitz agreed to retain Plaintiff in the SHU. When Plaintiff objected that his retention was a Aset up,@ defendant D.D. Ortiz stated, ATeach you to stop filing, think about that for the next six-year review.@ (4ACP at 19 ¶112.) Plaintiff understood the reference to Afiling@ to refer to the filing of inmate grievances. Plaintiff filed grievances complaining about his retention in the SHU, but officials refused to release him. Plaintiff requested but was not given copies of documents forming the basis of his retention in the validated SHU, to allow him to adequately defend against the retention.
Plaintiff claims his SHU retention caused him mental anguish because he was confined to his cell approximately twenty-two-and-a-half hours per day and denied access to education and vocation, phone, contact visits, and religious services, and he was limited to only one food/clothing package per year and $45.00 per month in canteen, whereas in the General Population, inmates are confined to their cells approximately eight hours per day and are allowed four food/clothing packages per year, $180.00 per month in canteen, and contact visits.
Retaliation Claim "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). An allegation of retaliation against a prisoner's First Amendment right to file a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). ...