The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION TO DISMISS BE GRANTED IN PART AND DENIED IN PART
OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
Findings and Recommendations on Defendant's Motion to Dismiss
Plaintiff Curtis Lee Henderson Sr. ("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 action is proceeding on Plaintiff's complaint, filed February 2, 2008 against defendant G. Rodriguez ("Defendant"). On January 26, 2009, pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b) and also Federal Rule of Civil Procedure 12(b)(6), Defendant filed a motion seeking dismissal of this action for failure to exhaust and failure to state a claim upon which relief may be granted. Plaintiff filed an opposition on February 6, 2009 and Defendant filed a reply on February 27, 2009.*fn1 This motion is deemed submitted. Local Rule 78-230(m).
II. Summary of Plaintiff's Complaint
Plaintiff arrived at Corcoran State Prison on July 11, 2007. (Doc. 1., Comp., ¶1). Plaintiff states that he immediately informed Defendant that he required his property for a scheduled court call appearance on July 17, 2007. (Id., ¶2). Plaintiff states that he filed several requests for his property and that the court matter was subsequently continued by the presiding judge because Plaintiff had not been issued his property. (Id., ¶3). On July 19, 2007, Defendant brought Plaintiff some of his legal property and his appliance (presumably his television), but threatened to dispose of Plaintiff's remaining legal property and render his television non-functional, because Defendant disliked inmates who had committed assaults on staff and then "crie[d] for their legal property to file lawsuits". (Id., ¶6). Plaintiff alleges that the remainder of his personal property was subsequently disposed of in retaliation for Plaintiff's engagement in protected activities. (Id., ¶¶9, 11,12). Plaintiff later discovered that his television did not work. Plaintiff alleges that Defendant further retaliated against him by refusing to issue to him a new television and quarterly package that were shipped to him by his family members in September 2007. (Id., ¶22). It appears that Plaintiff also alleges that Defendant blocked Plaintiff's ability to participate on court call appearances on August 6, 2007 and October 11, 2007. (Id., ¶¶15, 25).
III. Plaintiff's Retaliation Claims
A. Exhaustion Requirement
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. 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 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. 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). 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.
B. Defendant's Motion Defendant argues that he is entitled to dismissal of the retaliation claims because Plaintiff did not exhaust the available administrative remedies before filing this lawsuit. Defendant submits two grievances filed by Plaintiff in support of his motion. Defendant contends that neither Appeal Log numbers ...