The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER STRIKING PLAINTIFF'S SURREPLY FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED OBJECTION DUE WITHIN 30 DAYS (Doc. 18)
I. Findings and Recommendations Addressing Defendant's Motion to Dismiss
Desha Carter ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This is proceeding on Plaintiff's amended complaint, filed May 14, 2007, against defendant Rojas ("Defendant") for interfering with Plaintiff's mail in retaliation for Plaintiff's filing of grievances, in violation of Plaintiff's First Amendment rights. On May 23, 2008, pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b), defendant Rojas filed a motion to dismiss based on Plaintiff's failure to exhaust the available administrative remedies in compliance with 42 U.S.C. § 1997e(a). (Doc. 18.) Plaintiff filed an opposition on June 24, 2008*fn1 , defendant filed a reply on June 27, 2008, and Plaintiff filed a sur-reply on July 11, 2008. (Docs. 21, 22, and 23.)
Sur-replies are not generally allowed under the Local Rules of this Court. See Local Rule 78-230(m). The Court neither request nor granted permission for Plaintiff to file a sur-reply. Plaintiff's sur-reply will thus be stricken.*fn2
Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Chruner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 127 S.Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2007). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. at § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 126 S.Ct. 2378, 2383 (2006); McKinney, 311 F.3d at 1199-1201.
In his motion, defendant Rojas argues that he is entitled to dismissal of this action because none of Plaintiff's grievances concerning Rojas were completed through the director's level before the filing of this lawsuit. In support of the motion, Defendant submits evidence that Plaintiff filed four inmate grievances specifically concerning Rojas (Nos. 04-02737, 04-02743, 04-03083, and 04-04033) and one other concerning a delay in mail service by staff (No. 06-00512). (Doc. 18, Decl. of J. Jones, ¶¶ 3, 7-10, 12-13, 17-18, and 26-27.) The Court shall examine all five grievances.
Defendant Rojas contends that: 1) Grievance 04-02737 was denied at the first level, Plaintiff did not appeal to the second or Director's level, and the grievance does not involve the conduct alleged by Plaintiff in the complaint;
2) Grievance 04-02743 was granted in part at the first level, canceled at the second level because of Plaintiff's lack of cooperation, and the grievance does not involve the conduct alleged by Plaintiff in the complaint;
3) Grievance 04-03083 was partially granted at the first and second level, and screened out at the ...