The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are: (1) defendants' motion to dismiss (Doc. 175) based on failure to exhaust administrative remedies; and (2) defendant Whittles' motion for judgment on the pleadings (Doc. 177).*fn2 Plaintiff has filed oppositions to both motions.
This action proceeds on plaintiff's third amended complaint (Doc. 39). On February 21, 2008, the court issued findings and recommendations in which the court outlined the following background:
Plaintiff . . . alleges the following general background facts:
Plaintiff . . . is a prisoner within the California Department of Corrections and Rehabilitation ("CDCR"). He is also a plaintiff class member of Coleman v. Schwarzenegger, 912 F. Supp. 1282 (E.D. Cal. 1995), and Armstrong v. Schwarzenegger, 124 F.3d 1019 (9th Cir. 1997). He has been a patient in the CDCR's Mental Health Services Delivery System since 1996 with a consistent diagnosis of Post-Traumatic Stress Disorder and related conditions resulting from severe physical and psychological trauma he survived upon entering the prison system in 1994 as a former state peace officer and federal military police sergeant wrongly convicted of sexually assaulting a woman who has since come forward and admitted that she lied against him. Accordingly, he was specially transferred to Mule Creek State Prison . . . at the beginning of 1999 specifically for the purpose of facilitating his mental health condition . . . so he could be visited on a regular and frequent basis by his physically disabled mother and other loved ones residing in that area.
Plaintiff's mother is director of a prison watchdog group called United for No Injustice, Oppression, Neglect ("UNION"). Since 1998, Plaintiff's mother has worked through UNION to educate, organize, and thus empower the family members and friends of California state prisoners to more effectively advocate against the mistreatment of prisoners and corruption plaguing the California prison system.
Following Plaintiff's arrival at MCSP, especially beginning in the month of June 2000, Plaintiff, his activist mother, and their respective associates both in and out of prison lawfully exercised protected rights under the U.S. Constitution's 1st Amendment by speaking freely, peaceably associating and assembling toward a common good, and accessing available press, media, government officials, and courts to report, seek redress of, and otherwise publicly expose and denounce injustice, oppression, neglect, and other abuse of Plaintiff and other CDCR prisoners, particularly at MCSP.
Plaintiff asserts 12 separate claims, each with numerous sub-claims, alleging acts of retaliation by defendants because plaintiff engaged in the following activities: (1) petitioned for redress of grievances; (2) associated with others; (3) assembled with others; (4) spoke freely; and (5) communicated through confidential mail. He asserts the following specific acts of retaliation: (1) confiscation and destruction of personal property; (2) unreasonable confiscation of mail; (3) frequent cell searches; and (4) nude body inspections. Plaintiff specifically states that he is complaining of specific acts which are part of a "3-year campaign of retaliatory abuse" and that this campaign continues "unabated."
Plaintiff's complaint also asserts Eighth Amendment violations based on the following claims related to conditions of confinement while plaintiff was housed in administrative segregation between September 2000 and September 2001: (1) endangerment of personal safety; (2) intentional and/or negligent infliction of emotional anguish; (3) denial of clothing and/or warmth; (4) denial of sanitary conditions; (5) deliberate indifference toward known mental conditions; (6) deprivation of prescribed therapy and treatment; (7) excessive force; (8) denial of food; (9) experimental drugging; and (10) coercion, duress, and menace causing mental harm.
In its December 13, 2006, order determining that service of the third amended complaint was appropriate for the named defendants, the court stated:
. . . The gist of his complaint is that defendants at Mule Creek State Prison (MCSP) have retaliated against him for complaining about staff misconduct and working to improve prison conditions. Plaintiff alleges that defendants interfered with his prison grievances, interfered with his right to visitation, confiscated materials from a bulletin board, forced him to resign from the Men's Advisory Council, and forced other prisoners to deface a mural that plaintiff had painted. Finally, plaintiff alleges that his constitutional rights were violated by deplorable living conditions which he suffered during three separate placements in administrative segregation and by being served contaminated food.
Plaintiff's claims concerning the conditions he alleged[ly] encountered in Administrative Segregation and his claims that he was served contaminated food state cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). By themselves, the claims that defendants interfered with his prison grievances, interfered with his right to visitation, confiscated materials from a bulletin board, forced him to resign from the Men's Advisory Council, and forced other prisoners to deface a mural that plaintiff had painted do not state cognizable civil rights claims. However, to the extent that plaintiff alleges that the defendants engaged in the above-described actions as part of ongoing retaliatory conduct stemming from plaintiff's filing of a grievance (a constitutionally protected activity) concerning an incident in 2000, plaintiff does state a cognizable retaliation claim against defendants.
The February 21, 2008, findings and recommendations were adopted in full on March 12, 2008. The March 12, 2008, order set forth the following rulings, among others, which now govern this action:
1. The continuing violation doctrine applies and none of plaintiff's retaliation claims are time-barred;
2. Plaintiff's Eighth Amendment claims, which relate to the conditions of his confinement in administrative segregation between September 2000 and September 2001, are time-barred;
3. Claim 8m does not present a stand-alone basis for liability but represents part of plaintiff's allegations of the damages he suffered; and
4. This action proceeds on plaintiff's retaliation claims as against remaining defendants Ali, C. Brown, Danziger, Etheredge, Fowler, Gunning, Gutierrez, Hein, Hogan, Kaiser, Kanipe, Keeland, King, Lattimore, Marshall, Mesa, Murray, Nelson, O'Connor, Poe, Sauceda, Smith, Stewart, Vasquez, Warren, Warvarovski, and Whittle.*fn3
II. APPLICABLE LEGAL STANDARDS
A motion to dismiss based on a prisoner's failure to exhaust administrative remedies is properly the subject of an unenumerated motion under Federal Rule of Civil Procedure 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). "In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20. Where the court looks beyond the pleadings to a factual record in deciding the motion to dismiss, which is ". . . a procedure closely analogous to summary judgment," the court must assure that the plaintiff has fair notice of his opportunity to develop a record. Id. at 1120 n.14 (referencing the notice requirements outlined in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). Defendants bear the burden of establishing that the plaintiff failed to exhaust administrative remedies prior to filing suit. See Wyatt, 315 F.3d at 1120. If the court concludes that administrative remedies have not been exhausted, the unexhausted claims should be dismissed without prejudice. See id. at 1120; see also Jones v. Bock, 127 S.Ct. 910 (2007).
Motions under Rule 12(c) are similar to motions under Rule 12(b) in that judgment on the pleadings is appropriate if ". . . it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations." McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988). Rather than testing whether the factual allegations state a claim, motions under Rule 12(c) test whether, even if all the facts alleged in the complaint can be proved, defendants are nonetheless entitled to judgment as a matter of law. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). All non-conclusory factual allegations in the complaint must be assumed to be true. See Austad v. United States, 386 F.2d 147, 149 (9th Cir. 1967); see also McGlinchy, 845 F.2d at 810.
In their motion to dismiss, defendants argue that plaintiff failed to exhaust administrative remedies as to some, but not all, of the remaining claims. In his motion for judgment on the pleadings, defendant Whittle argues that claims against him are time-barred.
A. Defendants' Motion to Dismiss
Prisoners seeking relief under § 1983 must exhaust all available administrative remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The Supreme Court recently addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint because lack of exhaustion is an affirmative defense which must be pleaded and proved by the defendants; (2) an individual named as a defendant does not necessarily need to be named in the grievance process for exhaustion to be considered adequate because the applicable procedural rules that a prisoner must follow are defined by the particular grievance process, not by the PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not all, claims are unexhausted.
The Supreme Court also held in Woodford v. Ngo that, in order to exhaust administrative remedies, the prisoner must comply with all of the prison system's procedural rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, exhaustion requires compliance with "deadlines and other critical procedural rules." Id. at 90. Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance which affords prison officials a full and fair opportunity to address the prisoner's claims. See id. at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the quantity of prisoner suits "because some prisoners are successful in the administrative process, and others are persuaded by the proceedings not to file an action in federal court." Id. at 94.
A prison inmate in California satisfies the procedural rules of the administrative exhaustion requirement by following the process set forth in §§ 3084.1-3084.7 of Title 15 of the California Code of Regulations. In California, inmates "may appeal any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). These regulations require the prisoner to proceed through several levels of appeal: (1) informal resolution; (2) formal appeal; (3) second level appeal to institution head; (4) third level appeal to the director of the California Department of Corrections and Rehabilitation. A decision at the third formal level, which is also referred to as the director's level, is not appealable and concludes a prisoner's departmental administrative remedy. See Cal. Code Regs. tit. 15, §§ 3084.1(a) and 3084.5(e)(2). Departmental appeals coordinators may summarily reject a prisoner's untimely administrative appeal. See Cal. Code Regs. tit. 15, §§ 3084.3(c)(6) and 3084.6(c). If a group of inmates intend to appeal the same decision or action, one grievance form is used and a list of the participating inmates must be attached. The list must be legible and state the inmates' names, departmental identification numbers, and housing assignment. The form must also be signed by all participating inmates. Currently, California regulations do not contain any provision specifying who must be named in the grievance.
In certain circumstances, the regulations make it impossible for the inmate to pursue a grievance through the entire grievance process. See Brown v. Valoff, 422 F.3d 926, 939 n. 11 (9th Cir. 2005). Where a claim contained in an inmate's grievance is characterized by prison officials as a "staff complaint" and processed through a separate confidential process, prison officials lose any authority to act on the subject of the grievance. See id. at 937 (citing Booth, 532 U.S. at 736 n. 4). Thus, the claim is exhausted when it is characterized as a "staff complaint." See id. at 940. If there are separate claims in the same grievance for which further administrative review could provide relief, prison regulations require that the prisoner be notified that such claims must be appealed separately. See id. at 939. The court may presume that the absence of such a notice indicates that the grievance did not present any claims which could be appealed separate from the confidential "staff complaint" process. See id.
In their motion to dismiss, defendants concede that plaintiff has exhausted certain claims as follows:
1. The discreet issue raised in sub-claim 3g of whether the March 15, 2001, CDC 128-B was issued by Officer Kaiser in retaliation for the August 17, 2000, complaint filed by Plaintiff's visitor, Natalie Bolds;
2. The discreet issue raised in sub-claim 4c of whether the work supervisor's report issued by Captain Brown on July 12, 2001, was intended to harass and retaliate against Plaintiff for his conduct as the MAC vice-chairman;
3. The discreet issue raised in sub-claim 7a of whether Captain Warren's order to remove and to prohibit certain written materials posted on prison bulletin boards by Plaintiff in October 2001, was retaliatory in nature;
4. The discreet issue raised in sub-claim 8h of whether Officer Poe issued RVR B09/02-013, and Lieutenant Gutierrez found him guilty of the offense, in retaliation for Plaintiff having exercised his First Amendment rights;
5. The discreet issue raised in sub-claims 9c, 10f, m, o, r, and s of whether Captain Warren, Lieutenant Gutierrez, and Lieutenant Etheredge participated in Plaintiff's February 2003 ad-seg placement and subsequent rules violation report #B09/03-025, in retaliation for Plaintiff having exercised his First Amendment rights; and
6. The discreet issues raised in sub-claims 12a and b of whether Captain Lattimore and Lieutenant Gutierrez caused Plaintiff to suffer retaliatory disciplinary actions, MCSP RVR #B06/03-035/SCP-Sac RVR A-03-07-007, for expressing himself in a letter dated June 19, 2003, . . . and CSPSac RVR A-03-08-002 for expressing himself in a letter dated July 30, 2003. . . .
Defendants argue that all other claims are unexhausted "on the basis of procedural defects, failure to give fair notice of his claims, and failure to either commence or complete the exhaustion process. . . ."
The following is a summary of plaintiff's general allegations, as alleged in 12 claims:
Claim 1 Plaintiff alleges that various defendants identified in seven sub-claims (Claims 1a-g) "deprived Plaintiff and his associates of secured rights, privileges, and immunities by causing them to begin suffering an oppressive campaign of retaliatory abuse that was directly linked to Plaintiff documenting KAISER's misconduct. . . ." Defendants argue that Claims 1a-f are unexhausted. They do not raise any specific argument as to Claim 1g.
Claim 2 Plaintiff sets forth 12 sub-claims (Claims 2a-l) relating to events occurring in September and October 2000. Defendants argue that Claim 2 is unexhausted in its entirety.
Claim 3 Plaintiff alleges in eight sub-claims (Claims 3a-h) that defendants continued to retaliate against him. Defendants argue that plaintiff failed to exhaust Claims 3a-c and Claims 3e-f. No specific arguments are raised as to Claim 3d and Claims 3g-h. As noted above, defendants concede that Claim 3g is exhausted.
Claim 4 Plaintiff alleges in three sub-claims (Claims 4a-c) that defendants continued to retaliate against him, specifically because "Plaintiff was elected on 5/2/01 to represent his prison association under state law on the Men's Advisory Council ('MAC')." Defendants argue that all of Claim 4 is unexhausted, with the exception of that portion of Claim 4c relating to a July 12, 2001, work supervisor's report.
Claim 5 In Claim 5, plaintiff presents four sub-claims (Claims 5a-d) relating to events occurring "after and because Plaintiff lawfully expressed himself in confidential mail prepared and sent following the East Coast terrorist attacks of 9/11/01." Defendants argue that all of Claim 5 is unexhausted.
Claim 6 Plaintiff raises four sub-claims (Claims 6a-d) alleging continuing retaliation "which occurred after and because Plaintiff, at the insistence of his prisoner associates, lawfully sought re-election to the MAC." Defendants argue that all of Claim 6 is unexhausted.
Claim 7 In Claim 7, plaintiff sets forth allegations concerning events on October 29, 2001, and October 31, 2001. Defendants argue this claim is unexhausted except to the extent plaintiff asserts that defendant Warren's order to remove information posted on a bulletin board was retaliatory in nature.
Claim 8 Plaintiff sets forth 15 sub-claims (Claims 8a-n) of continuing retaliation "which occurred after and because Plaintiff exercised his protected rights in: (1) correspondence on 12/6/01 to GRAY and VASCONCELLOS stating that an investigation should be conducted into 'the oppressive reign of mike KNOWLES' at MCSP; (b) filing suit on 1/16/02 against HICKMAN, KAISER, KING, KNOWLES, LAGUNA, MYNHIER, SILVA, VASQUEZ, and WARREN for their roles in his retaliatory and otherwise unlawful confinements in ad-seg on 9/22/00 and 9/22/01 . . .; and (c) mailing on 3/11/02 to GRAY, VASCONCELLOS, and others with the state senate a letter and 20-page compilation of grievances reflecting mismanagement by KNOWLES and other officials over MCSP." Defendants argue Claims 8a-d, 8g-h, 8j, and 8l-n are unexhausted. Defendants concede that the portion of Claim 8h relating to RVR B09/02-013 is exhausted. Defendants do not raise any specific arguments as to Claims 8e-f, 8i, and 8k.
Claim 9 Plaintiff alleges in six sub-claims (Claims 9a-f) continuing acts of retaliation "after and because Plaintiff and his prisoner associates petitioned for redress of their food being repeatedly defiled by other prisoners." Defendants concede that Claim 9c, which relates to plaintiff's placement in administrative segregation, is exhausted. Otherwise, defendants argue that Claims 9b-c and 9e-f are unexhausted. They do not present any specific argument as to Claims 9a and 9d.
Claim 10 In 24 sub-claims (Claims 10a-x), plaintiff alleges a continuing
"campaign of retaliatory oppression . . . which occurred after and because Plaintiff and his associates documented, reported, publicized. . ., and otherwise grieved the recent food contaminations and related deliberate indifference, endangerment, and retaliatory acts alleged above at Claim 9." Defendants concede that Claims 10f, 10m, 10o, 10r, and 10s are exhausted, but only as to whether defendants Warren, Gutierrez, and Etheredge retaliated against plaintiff with respect to a February 2003 administrative segregation placement. Otherwise, defendants contend that Claims 10a-j, 10m, 10o, 10q-s, 10u-v, and 10x are unexhausted. They do not provide any specific arguments as to the remaining sub-claims.
Claim 11 In Claim 11, plaintiff outlines 11 sub-claims (Claims 11a-k) of retaliation for ". . . petitioning for redress of the unlawful events, circumstances, and conditions alleged in Claims 1-10 above. . . ." Defendants do not present any specific arguments relating to Claim 11. Claim 12 In Claim 12, plaintiff sets forth three sub-claims (Claims 12a-c) alleging continuing retaliation occurring "after and because Plaintiff lawfully exercised his right to speak freely in writing after he had suffered retaliatory transfer to another prison." Defendants concede that Claims 12a and 12b are exhausted, but offer no argument as to Claim 12c.
Defendants' specific arguments are addressed below.
Plaintiff alleges that defendant Kaiser engaged in various acts of retaliation in June and July 2000. Defendants appear to concede that plaintiff submitted inmate grievances concerning the underlying events in June and July 2000, but argue that plaintiff's claims are not exhausted because "Plaintiff's appeal makes no claim of retaliation in connection with these incidents." Submitted with defendants' motion is appeal no. MCSP-B-00-01495, which concerns visit terminations on three occasions between July 2, 2000, and July 9, 2000.*fn4
Defendants state that this grievance, however, "does not describe any retaliatory motives or actions" and conclude that, for this reason, plaintiff's retaliation claims in Claims 1a-c are unexhausted. Defendants argue that, because plaintiff failed to describe retaliatory conduct, his grievance "did not give CDCR a fair and full opportunity to adjudicate these retaliation claims."
The court does not agree with defendants' analysis, which reads too much specificity into the substantive requirement of exhaustion. As defendants correctly note, and as outlined above, the exhaustion requirement is meant to provide prison officials a full and fair opportunity to address grievances. The court does not interpret this to mean, however, that the prisoner can only properly exhaust a claim by outlining the legal theories in his inmate grievances, which is essentially the rule defendants ask the court to follow. Specifically, defendants argue that, by failing to describe retaliatory conduct in his prison grievances, plaintiff has not provided prison officials a full and fair opportunity to address plaintiff's claims relating to events in June and July 2000. However, plaintiff's grievances describe what plaintiff claims were improper visit terminations on specific dates. Plaintiff further names the officials who were responsible for the allegedly improper visit terminations. Thus, prison officials had a full and fair opportunity to address the grievance. In fact, based on prison officials' response to plaintiff's grievance concerning visit terminations, it appears that steps were taken to avoid unnecessary visit termination.
Defendants would have the court adopt a rule which essentially requires prisoners to outline the legal bases of their eventual federal court claims in their inmate grievances. First, such a requirement would not provide any more of an opportunity for prison officials to address grievances than would be afforded by requiring prisoners to simply outline the factual bases of their claims in the grievance process. Second, demanding that inmates outline legal theories in inmate grievances would put prison officials in the role of deciding whether constitutional or statutory rights had been violated. This is more properly the role of the court in the context of a civil rights case such as this. All that the exhaustion requirement demands is that the prisoner provide prison officials an opportunity to ...