ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION TO DISMISS (ECF NOS. 16, 25)
GONZALO P. CURIEL, District Judge.
Plaintiff Elvis Jones, Jr. ("Plaintiff"), a California state prisoner proceeding pro se and in forma pauperis, brought the instant case against Defendants A. Hernandez, K. Balakian, E. Recidro, and D. Paramo ("Defendants"). On March 28, 2012, Plaintiff filed his First Amended Complaint ("FAC") for violations of his civil rights pursuant to 42 U.S.C. § 1983. (ECF No. 8.) On October 1, 2012, Defendants filed a motion to dismiss Plaintiff's FAC because (1) Defendants are protected from this suit by sovereign immunity; (2) Plaintiff has failed to exhaust administrative remedies; and (3) Plaintiff has failed to state a claim upon which relief may be granted. (ECF No. 16.) Pursuant to 28 U.S.C. § 636(b)(1), the Honorable Bernard G. Skomal, United States Magistrate Judge, submitted a Report and Recommendation ("Report") to this Court on April 22, 2013, recommending that Plaintiff's FAC be dismissed for failure to exhaust administrative remedies. (ECF No. 25.) Judge Skomal also recommended that Defendants' Motion to Dismiss the Plaintiff's claims in the FAC for sovereign immunity and failure to state a claim be denied as moot. Plaintiff filed objections to the Report on May 29, 2013. (ECF No. 27.) For the reasons stated below, this Court OVERRULES Plaintiff' objections, ADOPTS Judge Skomal's Report, and GRANTS Defendant's Motion to Dismiss Plaintiff's claims in the FAC for failure to exhaust administrative remedies.
I. Inmate Appeal No. 1
On August 27, 2010, Plaintiff submitted an Informal Level Appeal complaining that he and other Enhanced Outpatient Program ("EOP") inmates were not being given equal time to access the law library compared to the General Population ("GP") inmates. (ECF No. 16-2 at 45, 47.) Plaintiff therein stated that EOP inmates are given access to the law library for two hours per day, two days per week, whereas GP inmates are given access to the law library six days per week. (Id.)
Prison librarian E. Simon submitted a response to Plaintiff on September 21, 2010, describing a forthcoming change to the library schedule to take effect upon the reassignment of a part-time library employee to a full-time position. (Id. at 45.) The new schedule allowed EOP inmates access to the law library for a total of nine hours per week. (Id. at 45, 47.) Librarian E. Simon also noted that, since GP inmates outnumber EOP inmates, GP inmates are entitled to and would continue to receive greater access to the law library. (Id.)
On October 1, 2010, Plaintiff indicated that he was dissatisfied with the informal response from librarian E. Simon, and submitted a Formal Level Appeal. (Id. at 45.) Plaintiff stated the lack of equal access to the law library amounted to discrimination and again requested access to the law library equal to the GP inmates. (Id.) On October 11, 2010, a temporary library schedule was implemented, wherein EOP inmates were given 2.5 hours per day, four days per week, totaling ten hours per week. (Id. at 49.) The same schedule alotted fourteen hours per week to GP inmates. (Id.)
On October 27, 2010, Correctional Sergeant R. A. Flores interviewed plaintiff regarding the temporary schedule adopted on October 11, 2010. (Id. at 48.) Plaintiff "stated that [the library is] now accommodating inmates in the Enhanced Outpatient Program." (Id.) Plaintiff's Formal Level Appeal was thus "granted."
II. Inmate Appeal No. 2
In May of 2011, librarian E. Simon was transferred to a different law library at "another location" and was shortly thereafter replaced by Defendant E. Recidro. (ECF No. 8 at 5.) Plaintiff alleges that defendant Recidro denied him proper access to the law library. (Id.) On October 6, 2011, Plaintiff filed a new appeal at the First Level of Review complaining that the schedule and terms established when his earlier appeal was granted on October 27, 2010, were not being followed.,  (ECF No. 16-2 at 53, 55.) Plaintiff therein stated that EOP inmates were allowed to enter the law library after 9:00 a.m. and forced to leave at 10:45 a.m. (Id.) According to Plaintiff, these times were in violation of the terms of his previous appeal which allowed EOP inmates access to the law library from 9:00 a.m. to 11:30 a.m. (Id.)
Plaintiff was interviewed regarding his appeal on November 7, 2011, by Bruce Crotts and a response was issued to Plaintiff on November 21, 2011. (Id. at 53.) The response, signed by Supervisor of Correctional Education Programs K. Balakian and Associate Warden Alan Hernandez, states (1) "there are approximately twice as many GP inmates as EOP inmates, " and the schedule thus allocates hours between the two groups proportionately, not equally; (2) EOP inmates who are designated as Priority Library Users ("priority status") may remain in the library until 11:30 a.m.; and (3) the library schedule is "in accordance with the [Department Operations Manual ("Operations Manual")] and [California Code of Regulations] Title 15, " which states that "inmates on [priority] status receive a minimum of four hours per calendar week as resources are available, and inmates on General Library User status ("general status") receive a minimum of two hours per calendar week." (Id. at 61.) The response further states that Plaintiff's complaint and corresponding inmate sign-in sheets both indicate that inmates received access in accordance with the requirements set forth in the Operations Manual and Title 15. (Id.) Plaintiff's appeal was thus denied at the First Level Review.
On November 25, 2011, Plaintiff indicated he was dissatisfied with the First Level response, and filed an appeal at the Second Level of Review. (Id. at 54.) Plaintiff therein reiterated that the relief granted in October 2010 was not being provided. (Id.) Plaintiff again requested ...