The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS COMPLAINT PLAINTIFF'S FIRST AMENDED [Doc. No. 46]
On March 8, 2007, Gregory A. Franklin ("Plaintiff"), a state prisoner currently incarcerated at Calipatria State Prison, proceeding pro se and in forma pauperis ("IFP"), filed a Complaint pursuant to 28 U.S.C. § 1983. Defendants Ochoa, Trujillo, Haley, Nelson, Ortiz, Vargas, Scribner, Bell and Madden filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b).*fn1 Instead of filing an Opposition, Plaintiff sought and received leave of Court to file a First Amended Complaint. Plaintiff filed his First Amended Complaint ("FAC") on September 4, 2007. Defendants Bell, Haley, Madden, Ochoa, Ortiz, Nelson, Scribner, Trujillo, Vargas, Zill and Bass filed a second Motion to Dismiss Plaintiff's First Amended Complaint. The Court granted Plaintiff an extension of time to file his Opposition to Defendants' Motion. However, Plaintiff subsequently filed two Oppositions on November 26 [Doc. No. 58] and December 27, 2007 [Doc. No. 65]. Both Oppositions appear to be identical and thus, the Court will refer to the Opposition filed on November 26, 2007. Defendants have filed a Reply to the first Opposition filed by Plaintiff [Doc. No. 63].
Plaintiff alleges that he suffers from an unspecified foot condition. As a result, he was issued a "soft shoe chrono" for the last eleven years. (FAC at 6.) Plaintiff has received surgery for one foot and is awaiting surgery for his other foot. (Id.) On September 7, 2005, Plaintiff was told by an unnamed correctional officer that he must wear"shower shoes" to the shower and he would not be permitted to wear his soft shoes that provided more support. (Id.) The unnamed correctional officer indicated that this order came from Warden Giurbino and the prohibition on soft shoes in the shower would continue while the prison was on "lockdown" status. (Id.)
On that same day, September 7, 2005, Plaintiff's cell was searched by Defendant Bass. Plaintiff alleges that Defendant Bass confiscated Plaintiff's walkman and radio. (Id. at 7.) Plaintiff also alleges that Bass took his walkman because Bass realized that he "had a previous unpleasant encounter with [Plaintiff]." (Id. at 10.) A few months later, on April 17, 2006, there was another cell search and Plaintiff had further personal items removed from his cell. (Id. at 7.) Defendants Ortiz and Vargas informed Plaintiff that they were required to remove these items pursuant to a memorandum issued by Warden Scribner which set forth items inmates were authorized to have in their cell. (Id.)
Plaintiff further alleges that he was denied "fresh air and recreation" from August 18, 2005 to January 2006 during which time the prison was on "lockdown" status due to a riot. (Id. at 8.) Further, Plaintiff contends that Defendants Scribner, Ochoa, Bourland, Nelson, Greenwood and Madden have "not allowed [Plaintiff] to receive adequate fresh air and recreation from January 2006 [until] the present." (Id.)
Plaintiff has a job within the prison as a member of an A-1-A work group.*fn2 Plaintiff's shift provides for days off on the weekend. (Id. at 9) However, Plaintiff alleges that inmates who are assigned to a different shift, a shift that gets days off during the week, have twice as many recreational hours. (Id.) In addition, Plaintiff alleges that Defendant Zill, on more than one occasion, refused to feed Plaintiff in his cell. (Id. at 10) Plaintiff also claims that Defendant Trujillo fabricated evidence against him resulting in a rules violation report in retaliation for Plaintiff's filing of a grievance against Trujillo. (Id.) Plaintiff also seeks to hold Defendant Bell liable for due process violations because Defendant Bell "screened out" a number of Plaintiff's administrative grievances. (Id. at 11.)
III. Defendants' Motion to Dismiss Pursuant to FED.R.CIV.P.12(b)
Defendants move to dismiss Plaintiff's equal protection claims and Plaintiff's retaliation claims as to Bass and Trujillo for failing to exhaust available administrative remedies pursuant to FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a).
A. Standard of Review per FED.R.CIV.P.12(b) and 42 U.S.C. § 1997e(a)
Defendants claim Plaintiff failed to exhaust available administrative remedies as to some claims pursuant to 42 U.S.C. § 1997e(a) before bringing this suit, therefore, they seek dismissal under the "non-enumerated" provisions of FED.R.CIV.P. 12(b). The Ninth Circuit has held that "failure to exhaust non-judicial remedies is a matter of abatement" not going to the merits of the case and is properly raised pursuant to a motion to dismiss, including a non-enumerated motion under FED.R.CIV.P. 12(b). See Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368-69 (9th Cir. 1988); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (finding a non-enumerated motion under Rule 12(b) to be "the proper pretrial motion for establishing nonexhaustion" of administrative remedies under 42 U.S.C. § 1997e(a)).*fn3 Wyatt also holds that non-exhaustion of administrative remedies as set forth in 42 U.S.C. § 1997e(a) is an affirmative defense which defendant prison officials have the burden of raising and proving. Wyatt, 315 F.3d at 1119. However, unlike under Rule 12(b)(6), "[i]n deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1120 (citing Ritza, 837 F.2d at 369).
B. Exhaustion of Administrative Remedies per 42 U.S.C. § 1997e(a)
The Prison Litigation Reform Act ("PLRA") amended 42 U.S.C. § 1997e(a) to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . 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). "Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory." Porter v. Nussle, 534 U.S. 516, 532 (2002). 42 U.S.C. § 1997e(a) has been construed broadly to "afford [ ] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case, id. at 525-26, and to encompass inmate suits about both general circumstances and particular episodes of prison life--including incidents of alleged excessive force. Id. at 532. Finally, "[t]he 'available' 'remed[y]' must be 'exhausted' before a complaint under § 1983 may be entertained," "regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 738, 741 (2001); see also McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (finding that prisoner's civil rights action must be dismissed without prejudice unless prisoner exhausted available administrative remedies before he filed suit, even if he fully exhausts while the suit is pending).
The State of California provides its prisoners and parolees the right to administratively appeal "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." CAL. CODE REGS., tit. 15 § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing CAL. CODE REGS. tit. 15 § 3084.5). The third or "Director's Level" of review "shall be final and exhausts all administrative remedies available in the Department [of Corrections.]" See Cal. Dep't of Corrections Operations Manual, § 54100.11, "Levels of Review;" Barry, 985 F. Supp. at 1237-38; Irvin v. Zamora, 161 F. Supp. 2d 1125, 1129 (S.D. Cal. 2001).
C. Application of 42 U.S.C. § 1997e(a) to Plaintiff's Case
It is well established that the failure to exhaust administrative remedies is an affirmative defense under the PLRA which the Defendants must plead and prove. See Jones v. Bock, et al. __U.S. __, 127 S.Ct. 910 (Jan. 22, 2007). Here, to support their claim that Plaintiff did not exhaust his administrative remedies with respect to his equal protection claim or his retaliation claims against Trujillo and Bass, Defendants provide the declaration of D. Edwards, the Appeals Coordinator at Calipatria State Prison. In this declaration, D. Edwards claims that he has reviewed all administrative grievances filed by Plaintiff while at Calipatria and he could find no grievances alleging denial of equal protection due to Plaintiff's work status or any claims with regard to retaliation by Defendants Trujillo and Bass. See Defs.' Mot, D. Edwards Declaration at ¶¶ 4-5.
In Opposition, Plaintiff claims that he did submit an administrative grievance with regard to Defendant Bass but it was "screened out" because it was untimely. See Pl.'s Opp'n at 6. However, the Supreme Court has made clear that Plaintiff must "properly exhaust" his administrative remedies before filing a prison conditions action. In Woodford v. Ngo, __ U.S. __, 126 S.Ct. 2378 (June 22, 2006), the Supreme Court held that "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford, 126 S.Ct. at 2386. The Court further held that "[proper exhaustion] means ... a prisoner must complete the administrative review process in accordance with the applicable procedural rules ... as a precondition to bring suit in federal court." Id.
Plaintiff admits that the grievances with respect to the retaliation claims against Trujillo and Bass were rejected by prison officials as untimely. (Pl.'s Opp'n at 6.) As a result, Plaintiff has failed to rebut Defendants' showing that he failed to properly exhaust his administrative grievances with respect to these claims. Thus, the Court must dismiss Plaintiff's retaliation claims against Trujillo and Bass for failing to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a).
Plaintiff claims that he did exhaust his equal protection claims and points to his grievance filed on November 28, 2005 in support of a finding that he exhausted this claim. See Pl.'s Opp'n at 6. Plaintiff requests that the Court review the grievance previously attached to his Motion for Temporary Restraining Order. See Pl.'s Mot. for TRO, Exhibit, Inmate/Parolee Appeal Form Log No. CAL-A-0600565 dated November 28, 2005. The Court liberally construes this as a request for judicial notice.*fn4 In this grievance, Plaintiff references privileges being revoked due to a lockdown caused by a racial riot. Id. The Court cannot find any connection between this grievance filed by Plaintiff and his claims in his First Amended Complaint alleging that members of a different work group had better access to the recreational yard. Thus, ...