The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT'S MOTION TO DISMISS BE DENIED
Plaintiff Frank Cockrell ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is Defendants' motion to dismiss based on Plaintiff's failure to exhaust all of his administrative remedies prior to filing suit. (Doc #19.) For the reasons set forth below, the Court finds that Defendant failed to meet his burden in proving that Plaintiff did not properly exhaust all available administrative remedies as required by the Prison Litigation Reform Act ("PLRA"). The Court recommends that Defendant's motion to dismiss be denied.
Plaintiff filed the complaint in this action on February 21, 2008. (Doc. #1.) Plaintiff alleged that he was retaliated against for the exercise of constitutionally protected rights. Plaintiff was scheduled to be transferred from the California Correctional Institution in Tehachapi, California ("CCI-Tehachapi") to the California Correction Center in Susanville, California ("CCC-Susanville"). Plaintiff's transfer would have threatened his health, move him away from his family, and prevent some sort of injunction related to an inmate grievance Plaintiff had filed. Plaintiff claimed that the transfer was done in retaliation for inmate grievances and lawsuits he filed. The Court screened Plaintiff's complaint on February 3, 2009. (Doc. #12.) The Court determined that Plaintiff stated a cognizable claim against Defendant Avalos for retaliating against Plaintiff. Defendant filed a motion to dismiss on May 14, 2009. (Doc. #19.) Plaintiff filed a response to Defendant's motion on June 3, 2009. (Doc. #23.) Defendant filed a reply to Plaintiff's response on June 9, 2009. (Doc. #25.) On June 29, 2009, Plaintiff filed a response to Defendant's reply. (Doc. #26.)
II. Defendant's Motion to Dismiss
Defendant argues in his motion to dismiss that he is entitled to dismissal because Plaintiff did not properly exhaust his administrative remedies prior to filing his lawsuit. (Def.'s Notice and Mot. to Dismiss for Failure to Exhaust 1:21-23.) Defendant argues that Plaintiff did not properly exhaust his available administrative remedies because he did not pursue an appeal to the final administrative level (the Director's level) before bringing this action. (Supp. of Mot. to Dismiss 3:3-4.)
In Plaintiff's response to Defendant's motion to dismiss, Plaintiff states that he submitted an emergency 602 appeal (an inmate grievance) some time prior to being transferred from CCITehachapi to CCC-Susanville. (Pl.'s Resp. to Def.'s Mot. to Dismiss for Failure to Exhaust Administrative Remedies with P. & A. 1:16-18.) Plaintiff alleges that prison officials are required to respond to emergency appeals within five days, but in his case he was transferred on the fifth day and his appeal was never answered. (Resp. to Mot. to Dismiss 1:16-26.) Plaintiff explains that he filed his law suit after the five days passed because Plaintiff anticipated that prison officials would ignore his grievance.*fn1 (Resp. to Mot. to Dismiss 2:1-2.) Plaintiff argues that because prison officials did not answer his emergency appeal, they effectively prevented Plaintiff from exhausting his administrative remedies. (Resp. to Mot. to Dismiss 2:24-27.)
Plaintiff also appears to suggest that he was threatened with retaliation if he pursued his inmate grievance any further. Plaintiff alleges that "Plaintiff's lawyers and one of his son's[sic] was told that if anyone called again, the Mr. Cockrell[sic] would be shipped to Pelican Bay, the only prison further north than Susanville." (Resp. to Mot. to Dismiss 2:2-6.) It is not clear how the threat to transfer Plaintiff "if anyone called again" is related to pursuing inmate grievances, but Plaintiff suggests later characterizes the incident as "threats to Plaintiff and the carrying out of those threats, in addition to the disappearance of his 602 appeal". (Resp. to Mot. to Dismiss 2:13-15.)
In response to Plaintiff's arguments, Defendant contends that Plaintiff did not file a grievance. (Def.'s Reply to Pl.'s Opp'n to Mot. to Dismiss 2:1-3.) Defendant alleges that an appeals coordinator logs all grievances of any kind. (Def.'s Reply 4:4-5.) Defendant alleges that there are no records that Plaintiff submitted any appeal on the claims at issue on or about February 7, 2008, as Plaintiff alleges. (Def.'s Reply, Ex. B, Decl. of K. Sampson, 2:28-3:5.) Defendants also argue that Plaintiff offers no documentary evidence to support his contention that he filed an emergency grievance and lacks personal knowledge that his grievance was destroyed. (Def.'s Reply 4:21-28)
Defendant also argues that Plaintiff's timing in filing his complaint suggests that Plaintiff did not make a good faith effort to exhaust his administrative remedies. Defendant argues that Plaintiff was approved to be transferred to CCC-Susanville on February 7, 2008. (Def.'s Reply 3:9-13.) The date that Plaintiff allegedly placed his inmate grievance in the complaint box was February 9, 2008. (Def.'s Reply 3:9-13.) Defendant points out that Plaintiff declared in a proof of service dated February 8, 2008 that he served Defendant Avalos and other prison officials with a copy of the complaint in this action that same day. (Def.'s Reply 3:23:-24.) Thus, Plaintiff served Defendant with the complaint the day after he was approved for the alleged retaliatory transfer, and a day before he placed his grievance in the complaint box for processing. (Def.'s Reply 3:23-26.) Defendant also alleges that Plaintiff was not transferred from CCI-Tehachapi until February 19, 2008, refuting Plaintiff's allegation was that he was transferred earlier to avoid responding to his grievance. (Def.'s Reply 3:27-4:2.)
Finally, Defendant also argues that had Plaintiff believed that his appeal had been denied at the first level because he had not received a response by the fifth day, he could have resubmitted the appeal to the appeals coordinator for processing at the third level. (Def.'s Reply 4:12-14.) As to the suggestion that Plaintiff was threatened if he pursued his inmate grievance, Defendant argues that Plaintiff's argument is based on "hearsay of the worst kind." (Def.'s Reply 5:3-5.) Defendant argues that Plaintiff does not identify the prison official that made the threat, the persons who heard the alleged statement, or the date that the statement was made. (Def.'s Reply 5:5-7.) Nor does Plaintiff provide declarations under penalty of perjury from the persons that allegedly received the threats from the unknown prison official. (Def.'s Reply 5:7-9.)
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). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 435 U.S. 516, 532 (2002). "All 'available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be 'plain, speedy, and effective.'" Porter, 534 U.S. at 524 (citing Booth v. Churner, 532 U.S. 731, 739 n.5 (2001)). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth, 532 U.S. at 741.
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084, et seq. "Any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can reasonably demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit 15, § 3084.1(a). Four levels of appeal are involved, including the informal level, first formal ...