The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BE GRANTED AND PLAINTIFF'S ACTION BE DISMISSED WITHOUT PREJUDICE (Docs. 23 & 25) / OBJECTION DUE WITHIN 20 DAYS
Jack Alexander Bokin ("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 January 8, 2007, against defendants Scribner, Knowles, Sherman, Winkler, Emigh, and Reyes ("Defendants") for violation of Plaintiff's due process rights under the Fourteenth Amendment. On May 2, 2008, pursuant to Federal Rule of Civil Procedure 12(b)(6) and the unenumerated portion of Rule 12(b), Defendants Emigh, Knowles, Reyes, Sherman, and Winkler filed a motion to dismiss for failure to state a claim upon which relief may be granted and for failure to exhaust available administrative remedies. (Doc. 23.) On May 20, 2008, Defendant Scribner moved to join the other Defendants' motion to dismiss. (Doc. 25.)*fn1
On December 1, 2008, Plaintiff filed his opposition to Defendants' motion to dismiss. (Doc. 41.)*fn2 On December 11, 2008, Defendants filed their reply to Plaintiff's opposition. (Doc. 44.) On January 7, 2009, the Court ordered Defendants to file a further reply. (Doc. 45.) On January 12, 2009, Defendants filed their reply to the Court's order. (Doc. 46.)
B. Motion to Dismiss For Failure to Exhaust Available Administrative Remedies
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.
2. Exhaustion of Available Administrative Remedies
Plaintiff's amended complaint is proceeding against Defendants Knowles, Scribner, Sherman, Winkler, Emigh, and Reyes for allegedly violating Plaintiff's due process by placing Plaintiff in the Corcoran Security Housing Unit (SHU). Defendants contend that Plaintiff has failed to exhaust administrative remedies regarding his claim. Defendants contend that Plaintiff filed two administrative grievances related to Plaintiff's complaint: MCSP-02-1566, concerning Plaintiff's transfer to the Corcoran SHU, and MCSP-02-1098, concerning disciplinary actions. Both of these claims were denied at the second level of review and never appealed to the Director's level. (Doc. 23, p. 5; Exh. A, Reyes Decl., ¶¶ 6-8 and Exh. A-1; Exh. B, Jones Decl., ¶¶ 6-7; Exh. C, Grannis Decl., ¶¶ 5-7.) Regarding Defendant Sherman, Defendants further contend that Sherman's alleged conduct occurred four months after second level review of Plaintiff's grievances. (Doc. 23, p. 5.) Plaintiff raises several arguments in opposition. Each party's contentions are addressed below.
a. Grievance No. COR 02-03823 and Other Grievances Filed While At Corcoran
First, Plaintiff contends that he had exhausted administrative remedies with Grievance No. COR 02-03823. (Doc. 41, Exh. A, p. 13.) Grievance No. COR 02-03823 concerned the confiscation of Plaintiff's typewriter at California Substance Abuse Treatment Facility. (Id., p. 2:2-28 and Exh. A, p. 13.) Plaintiff contends that because he had raised this grievance in his complaint, and had received a response at the ...