The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S SURREPLY (Doc. 44)
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. 36)
Brian Cruz ("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 first amended complaint, filed August 11, 2006, against Defendants Cobbs, Ahlin, Saunders, Carrillo, and Duvall for retaliation, against Defendants Tilton, Alameida, and Adams for failure to properly train, supervise, assign, and discipline prison staff, and against Defendants Saunders, Ahlin, and Carrillo for failing to provide for Plaintiff's security/protection.*fn1
On March 26, 2009, Defendants filed a motion to dismiss for: 1) failure to exhaust administrative remedies pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure and 2) failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 36, Defs.' Mot. to Dismiss.) On May 18, 2009, Plaintiff filed his opposition to Defendants' motion to dismiss. (Doc. 41, Pl's Opp'n to Mot. to Dismiss.) On May 29, 2009, Defendants filed a reply to Plaintiff's opposition. (Doc. 42, Defs.' Reply to Pl.'s Opp'n.)*fn2 The matter is deemed submitted. L. R. 78-230(m).
On June 22, 2009, Plaintiff filed a "Response in Support of denying 12(b) Motion." (Doc. 43.) This document appears to be a surreply, opposing Defendants' reply. On July 1, 2009, Defendants filed a motion to strike Plaintiff's surreply contending that there is no provision in the Federal Rules of Civil Procedure or the Local Rules authorizing filing a surreply to the moving party's reply. (Doc. 44, Mot. to Strike 3.) Surreplies are not generally allowed under the Local Rules of this Court. See L. R. 78-230(m). The Court neither requested nor granted permission for Plaintiff to file a surreply. Accordingly, Defendants' motion to strike Plaintiff's surreply is GRANTED and Plaintiff's surreply is HEREBY ORDERED STRICKEN.
B. Summary of Plaintiff's Amended Complaint
Plaintiff alleges that during his confinement at California Substance Abuse and Treatment Facility ("CSATF"), he was the subject of a continued pattern of retaliation by Defendants. Plaintiff alleges that Defendants Cobbs, Ahlin, Saunders, Carrillo, and Duvall retaliated against Plaintiff for filing prisoner grievances, civil lawsuits, and corresponding with public officials by (1) threatening to harm, punish, injure, and harass Plaintiff; (2) searching Plaintiff's cell excessively; (3) filing fraudulent disciplinary charges to retain Plaintiff in administrative segregation ("ad seg"); (4) instigating Plaintiff's assault by inmate Sargent; (5) fraudulently inflating Plaintiff's points to ensure retention in maximum security; (6) permitting the loss, theft, or destruction of Plaintiff's property; (7) fraudulently manipulating Plaintiff's classification; (8) failing to properly process Plaintiff's complaints; and (9) engaging in acts of intimidation against Plaintiff.
Plaintiff also alleges that Defendants Tilton, Alameida, and Adams are liable for deliberate indifference when they knowingly failed to respond to Plaintiff's requests for help by failing to properly train, supervise, assign, and discipline prison staff. Plaintiff also alleges that Defendants Saunders, Ahlin, and Carrillo failed to provide for Plaintiff's security/protection when Defendants instigated an inmate attack on Plaintiff.
C. Failure to Exhaust 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. Churner, 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 (Deering 2009). The process is initiated by submitting a CDC Form 602. Id. § 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. § 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. §§ 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, 548 U.S. 81, 86 (2006); McKinney, 311 F.3d at 1199-1201.
Plaintiff does not have to name each defendant in his grievance form. See Jones v. Bock, 549 U.S. 218-19 (2007) ("The level of detail necessary in a grievance to comply with the grievances procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion . . . .
[E]xhaustion is not per se inadequate simply because an individual later sued was not named in the grievances."). The inmate appeal form CDC-602 does not require identification of specific individuals. See Cal. Code Regs., tit. 15 § 3084.2(a).
A. Retaliation and Grievance No. SATF-03-00525
Defendants contend that Plaintiff's only exhausted grievance regarding retaliation, SATF-03-00525, should be limited only to allegations of retaliation for an indeterminate SHU term. (Doc. 36-2, Mem. of P. & A. in Supp. of Mot. to Dismiss 8:1-8.) Defendants contend that Plaintiff's other claims, including: (1) placed in ad seg on September 2001, May 2002, and December 10, 2002, (2) subjected to retaliatory cell searches in October 2002, (3) forced off the inmate advisory committee ("IAC") by Defendant Carrillo, and (4) having his property stolen, should not be considered because they were not timely raised. (Mem. of P. &. A. 6-8.) Plaintiff contends that grievance No. SATF-03-00525 encompasses the time period of July 18, 2001 through May 2004 and clearly shows a pattern of retaliation and harassment. (Pl.'s Opp'n 2-3.)
An examination of grievance No. SATF-03-00525 indicates that Plaintiff submitted the grievance on January 26, 2003, and appealed it through the director's level. Plaintiff specifically alleged in his exhausted grievance a pattern of retaliation and harassment and listed three incidents that he alleges support his claims: placement in ad seg on September 3, 2001, on May 13, 2002, the most recent ad seg placement on December 11, 2002, and continued retention in ad seg for endorsement of an indeterminate SHU (Secure Housing Unit) term. However, the three prior placements were not exhausted by grievance No. SATF-03-00525.
In order to be entitled to relief regarding those three ad seg placements, Plaintiff was required to exhaust administrative remedies within the time required by prison regulation. An inmate must appeal a decision by prison officials "within 15 working days of the event or decision being appealed." Cal. Code Regs. tit. 15, § 3084.6(c). Grievance No. SATF-03-00525 was not submitted until January 26, 2003, well after Plaintiff had been placed in ad seg for the three incidents. Thus, it cannot be used to exhaust administrative remedies for the September ...