FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983, alleging that he was placed on disciplinary status because he refused, on religious grounds, to comply with the CDCR's grooming standards; that supervisory personnel failed to train correctional officers on the appropriate guidelines for an inmate's religious practices and failed to give plaintiff relief from the improperly imposed discipline; that defendant Moreno retaliated against plaintiff for attempting to seek relief from the grievance system; and that defendant Schwartz enforced a policy that violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). These events were alleged to have occurred in 2004 and 2005.
Defendants have filed two motions to dismiss, arguing that plaintiff has failed to exhaust his administrative remedies; that his complaint fails to state a claim; and that they are entitled to qualified immunity. The court finds that plaintiff has failed to exhaust his administrative remedies, as explained below.
The Prison Litigation Reform Act (PLRA) provides that "no action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Conditions of confinement" subject to exhaustion have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prisons." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules . . . ." Woodford v. Ngo, 548 U.S. 81, 90 (2006). As noted, the statute requires an inmate to exhaust those remedies that are available; for a remedy to be "available," there must be the "possibility of some relief. . . ." Booth, 532 U.S. at 738.
The grievance process must be completed before the inmate files suit; exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002).
California prison regulations provide administrative procedures in the form of one informal and three formal levels of review to address an inmate's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5.
Finally, to satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint. Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case"); Brown v. Sikes, 212 F.3d 1205, 1209 (11th Cir. 2000) (§ 1997e(a) requires that a prisoner provide as much relevant information as he reasonably can in the administrative grievance process).
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. Defendants bear the burden of proving plaintiff's failure to exhaust. Id. at 1119.
Defendants have submitted the declaration of M. Cry, appeals coordinator at the California Medical Facility (CMF), who avers that between October 24, 2004 and April 12, 2006, plaintiff submitted eight grievances that were not screened out for procedural deficiencies; none of these eight grievances challenged the CMF grooming policy or any religious discrimination against plaintiff. Declaration of M. Cry (Cry Decl.) ¶¶ 3, 5. Defendants have also presented the first pages of these grievances and described their outcomes:
1. Log No. 04-M-2190, dated December 10, 2004, concerning missing property; did not make it past the first level. [Second] Motion to Dismiss (Docket No. 34), Ex. A;
2. Log No. 04-M-2256, dated December 14, 2004, complaining that officers told him to remove a hat before entering the dining hall; did not make it past the first level. Id., Ex. B;
3. Log No. 04-M-2335, dated December 30, 2004, seeking the return of property; did not make it past the first level. Id., Ex. C;
4. Log No. 05-M-308, dated February 10, 2005, seeking the return of a radio and headphones; also did not make it past the first level. Id., Ex. D;
5. Log No. 05-M-1277, dated June 23, 2005, challenging the manner in which the cable television programming is handled; denied at the first level. Id., Ex. E;
6. Log No. 05-M-1586, dated July 14, 2005, alleging that defendant Moreno verbally abused plaintiff when he asked Moreno about cable television programming; denied at the Director's Level. Id., Ex. F; ...