The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge
Plaintiff Johnny Earl Evans ("Evans") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Evans alleges Defendant C. Delouth issued a false Rules Violation Report ("RVR") in retaliation for Evans's expressed intent to report him for using profanity directed at inmates on August 16, 2005. (Doc. 52, p. 3, § IV & ¶¶ 5-8.). Evans contends that this retaliation violated his First Amendment rights. He also argues that Delouth violated his Eighth Amendment rights.
Pending before this Court is Defendants' un-enumerated 12 (b) Motion to Dismiss for Evans's failure to exhaust his administrative remedies. (Doc. 60). Defendants filed declarations in support of their contention that Evans failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA"). (Doc.60). Evans filed an opposition to Defendants' Motion to Dismiss and a declaration in support thereof. (Docs. 69, 70, 72). Evans failed to present any evidence in response to Defendants' showing that he did not exhaust the claims he set forth in his Fourth Amended Complaint. This Court ordered Evans to show cause why his Fourth Amended Complaint should not be dismissed. (Doc. 73). Evans was ordered to proffer evidence or specific facts to rebut Defendants' contention that he failed to exhaust his administrative remedies. (Doc. 73). See Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988) (finding that courts have broad discretion to as to what methods shall be implemented to resolve factual disputes where exhaustion is raised as a matter of abatement in an un-enumerated 12 (b) motion); see also Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003) ("the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust- a procedure closely analogous to summary judgment- then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record.").
The PLRA provides that, "[no] action shall be brought with respect to prison conditions under [42 U.S.C.] section 1983 . . . or any other Federal law, 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). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
Defendants argue that Evans's action should be dismissed because he failed to properly exhaust his administrative remedies. Defendants contend that Evans did not provide the prison notice of the retaliation or cruel and unusual punishment claims presented in his Fourth Amended Complaint, as required by the PLRA. Specifically, Defendants assert that the October 15, 2005, Inmate Appeal Form Evans relies on to illustrate exhaustion is inadequate. (Doc. 61, p.4-6). In support of their motion to dismiss, Defendants have proffered the declarations of N. Grannis, the California Department of Corrections and Rehabilitation's Chief of the Inmate Appeals Branch ("IAB") and T. Billings, the CDCR Appeals Coordinator.
N. Grannis stated in his declaration that a search of IAB records revealed that Evans "filed one grievance at Kern Valley State Prison (KVSP) that IAB received and accepted for a Director's level decision- IAB Case No. 0513990, KVSP 05-00369." (Grannis Decl. Ex. A, § A.). Evans stated in this grievance that he was found guilty of "disrespect toward staff," even though Delouth only charged him with "inciting." (Grannis Decl. Ex. A p. 1, § A.). The gravamen presented in Evans's grievance was that Lt. Mathews improperly re-classified the charge of "disrespect toward staff" as a lesser included offense of "inciting." (Id.). Evans requested that the administrative body dismiss the guilty verdict, reinstate his work assignment and A1-A status. Evans also sought compensation for his lost wages and his alleged unlawful placement in administrative segregation that was predicated on false charges. (Id. p. 1, § B.). T. Billings's declaration corroborated N. Grannis's findings. T. Billings stated that a search of the CDCR 602 grievances and administrative appeals yields the same grievances mentioned above. (Billings Decl. Ex. B).
The filed grievance does not allege that Defendant Delouth retaliated against him, that the RVR was retaliatory, or that his constitutional rights were violated. (Grannis Decl. Ex. A, § A.). Furthermore, Evans's grievance does not provide any facts supporting his instant complaint that Delouth subjected him to cruel and unusual punishment during the August 16, 2005 incident, during his term in administrative segregation, or from the punishment levied from the finding of guilt resulting from the RVR. (Id.)
Defendants further allege in their declarations that Evans did not file a grievance with KVSP complaining of retaliation or having been subjected to cruel and unusual punishment between August 1 and December 31, 2005. (Grannis Decl. ¶ 6; Billings Decl. ¶ 3).*fn1
In response to this Court's Order to Show Cause, Evans asserts that his October 15, 2005, grievance and Citizen's Complaint*fn2 apprised prison officials of his retaliation and cruel and unusual punishment claims. (Doc. 81, p. 8-11). In support, Evans argues that his 602 factual claim that Delouth wrote a false 115 report against him gave prison officials fair notice that the motive underlying Delouth's conduct was at issue, and [plaintiff's] response in III of the appeal he tries to present additional details to clarify the allegation made in Section A of the appeal by describing the only profane language [Evans] used towards C/O Delouth was I am going to write your ass up for cursing at us. (Id., p. 10) (citations omitted).
Evans's response does not address whether his 602 afforded prison officials notice of his ...