The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) GRANTING DEFENDANT WICKLINE'S MOTION TO DISMISS PURSUANT TO FED.R.CIV.P.12(b), 12(b)(6) AND 42 U.S.C. § 1997e(a); AND (2) ORDERING PLAINTIFF TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED AS TO REMAINING DEFENDANTS PURSUANT TO FED.R.CIV.P. 4(m) [Doc. No. 37]
Jose Luis DiParra ("Plaintiff"), formerly incarcerated at the California Rehabilitation Center located in Norco, California and proceeding pro se, filed a Complaint pursuant to 42 U.S.C. § 1983 on January 16, 2007. The Court granted Plaintiff's Motion to Proceed In Forma Pauperis ("IFP") but sua sponte dismissed Plaintiff's Complaint for failing to state a claim and for seeking monetary damages against immune defendants pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii) and (iii). See Feb. 2, 2007 Order at 7. Nonetheless, the Court provided Plaintiff the opportunity to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id. On March 23, 2007, Plaintiff filed his First Amended Complaint. The Court found that Plaintiff's First Amended Complaint survived the sua sponte screening required by 28 U.S.C. § 1915(e)(2) only to the extent that Plaintiff was seeking injunctive relief in the form of a new parole eligibility review. See May 1, 2007 Order at 2 (citing Wilkinson v. Dotson, 544 U.S. 74, 78 (2005)). Thus, the Court determined Plaintiff was entitled to U.S. Marshal service on his behalf and ordered the U.S. Marshal to effect service on Defendants.
Subsequently, Plaintiff sought leave of Court to add an additional Defendant. See Decl. by Plaintiff dated Nov. 1, 2007. The Court permitted Plaintiff to file a Second Amended Complaint in order to add this Defendant. See Nov. 6, 2007 Order at 2. On February 1, 2008, Plaintiff filed his Second Amended Complaint ("SAC"). Based on a review of the docket, it appears that the only Defendant who has been properly served in this action is Defendant Wickline. Currently before the Court is Defendant Wickline's Motion to Dismiss Plaintiff's Second Amended Complaint [Doc. No. 37]. Plaintiff has not filed an Opposition.
II. Defendant Wickline's Motion to Dismiss per FED.R.CIV.P. 12(b) and 12(b)(6)
A. Defendant's Motion to Dismiss for Failing to Exhaust Administrative Remedies
Defendant Wickline moves to dismiss Plaintiff's Second Amended Complaint for failing to exhaust available administrative remedies pursuant to FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a).
1. Standard of Review per FED.R.CIV.P.12(b) and 42 U.S.C. § 1997e(a)
Defendant claims Plaintiff failed to exhaust available administrative remedies pursuant to 42 U.S.C. § 1997e(a) before bringing this suit, therefore, he seeks 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). 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)).*fn1 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. 549 U.S. 199, 127 S.Ct. 910 (Jan. 22, 2007).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." Wyatt, 315 F.3d at 1120 (citing Ritza, 837 F.2d at 369).
2. Exhaustion of Administrative Remedies per 42 U.S.C. § 1997e(a)
Before the Prison Litigation Reform Act ("PLRA") was enacted on April 26, 1996, prisoners pursuing civil rights claims under 42 U.S.C. § 1983 were not required to exhaust administrative remedies before filing suit in federal court. See Patsy v. Bd. of Regents of Florida, 457 U.S. 496, 516 (1982). The PLRA amended 42 U.S.C. § 1997e(a) to provide however, 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.]" 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).
3. Application of 42 U.S.C. § 1997e(a) to Plaintiff's Case
Here, while Plaintiff's Second Amended Complaint is not the model of clarity, he appears to claim that his constitutional rights were violated by the conditions imposed on his parole. (See SAC at 6-8.) In support of his position that Plaintiff did not exhaust his administrative remedies before filing suit, Defendant has submitted the Declaration of K. Sampson, Appeals Coordinator for the California Correctional Institution. In this declaration, K. Sampson indicates that he searched the records to "ascertain if [Plaintiff had] filed any inmate appeals against [Defendant Wickline] for allegedly imposing special parole conditions, and enforcing the new guidelines to [Plaintiff's] commitment offense in 1983." (Declaration of K. Sampson at ¶ 5). He further declares that he was unable to find any such grievance. (Id. at ¶ 6). Defendant also submit the Declaration of N. Grannis, Chief of ...