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 BE DENIED (Doc. 19)OBJECTION DUE WITHIN THIRTY DAYS ANSWER TO AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Findings and Recommendations on Defendants' Motion to Dismiss
Plaintiff Michael A. Scholes ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 21, 2008. This action is proceeding on Plaintiff's amended complaint, filed May 21, 2008, against Defendants Rod Higman, Robin Dezember, Ken Clark, and Perlita McGuiness ("Defendants"). On October 19, 2008, defendants Higman, Dezember, and Clark filed a motion to dismiss for failure to exhaust the available administrative remedies. (Doc. 19.) Defendant McGuiness joined the motion to dismiss on October 24, 2008. (Doc. 21). Plaintiff filed an opposition on November 7, 2008, and Defendants filed a reply on November 12, 2008. (Docs. 22, 23.)
II. Exhaustion Requirement
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[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. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which Defendant has the burden of raising and proving the absence of exhaustion. Jones v. Bock, 127 S.Ct. 910, 921 (2007); 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. 1998) (per curium)). 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 and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2008). 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). CDCR also has a process which allows inmates with disabilities to request a reasonable modification or accommodation by submitting a CDC Form 1824. Id. at § 3085(a). Inmates may appeal any decision they are dissatisfied with by attaching the 1824 form to a 602 appeal form and submitting it to the second formal level of review. Id. § at 3085(b). In order to satisfy section 1997e(a), California state prisoners are required to use the available process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2383 (2006); McKinney, 311 F.3d at 1199-1201.
This action is proceeding on Plaintiff's allegations that he was denied medical treatment and accommodation after sustaining a tibial fracture to his right leg on March 23, 2006, while housed at California Substance Abuse and Treatment Facility ("CSATF"). Plaintiff alleges that he was also denied treatment in retaliation for seeking intervention by members of the California Legislature. Plaintiff alleges that he was provided with a single x-ray on or about April 5, 2006. On April 10, 2006, Plaintiff was released from custody. Plaintiff alleges violations of his First, Eighth and Fourteenth Amendment rights.
Defendants argue that Plaintiff never filed an inmate appeal concerning the allegations contained in the complaint. The events giving rise to this action began on March 23, 2006, and Defendants have submitted evidence that the last inmate appeal by Plaintiff was filed and accepted for review on March 14, 2006. (Doc. 19, Hall Decl., ¶4).
In his opposition, Plaintiff argues that Defendants have misapplied 42 U.S.C. §1997e(a) in that the section does not apply to persons who have been released from confinement. Plaintiff further argues that Defendants fail to establish that there was an appeal procedure for parolees who discover their injuries after being released, and that there were no administrative remedies available to him. Plaintiff further argues that Defendants used their position of superiority to prevent the Plaintiff from initiating his appeal processes before his release. Finally, Plaintiff argues that the motion is completely frivolous.
In reply, Defendants argue that Plaintiff's argument that he was not a prisoner at the time of filing suit does not recognize the "purpose, reach and applicability" of the PLRA as discussed by the Supreme Court in Booth v. Churner, 532 ...