The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS (Doc. 48)
Plaintiff Jason Latrell Thomas ("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 properly exhaust all of his administrative remedies prior to filing suit and failure to state a claim. (Doc. #48.) This action is proceeding on Plaintiff's Third Amended Complaint filed on March 28, 2008 against Defendants M. Castro, D. D. Sheppard-Brooks, K. Frescura, I. Garza, I. Hernandez, James, M. L. Gonzalez, Price, Vikjord, and Wilber ("Defendants"). Plaintiff alleges that Defendants violated Plaintiff's rights under the First and Eighth Amendments. Defendants filed their motion to dismiss on June 17, 2009. (Doc. #48.) Plaintiff filed an opposition on July 6, 2009. (Doc. #49.) Defendants filed a reply to Plaintiff's opposition on July 8, 2009. (Doc. #50.) For the reasons set forth below, the Court recommends that Defendants' motion to dismiss be partially granted and that this action proceed on Plaintiff's Eighth Amendment failure to protect claims against Defendants D. D. Sheppard-Brooks, I. Garza, M. L. Gonzales, Wilber, and James. The Court recommends that all other claims be dismissed due to Plaintiff's failure to exhaust his administrative remedies.
I. Defendants' Motion to Dismiss
Plaintiff alleges that Defendants violated his constitutional rights while he was incarcerated at the California State Prison in Corcoran, California ("CSP-Corcoran"). Plaintiff claims that Defendants Wilber, Vikjord, Frescura, Price, Castro, and Hernandez censored his outgoing mail in violation of his rights under the First Amendment. Plaintiff claims that Defendants Vikjord, Wilber, Castro, Frescura, Price, and Hernandez violated Plaintiff's rights under the Eighth Amendment by attacking Plaintiff while he was shackled and not resisting, and by tainting Plaintiff's meals with liquid detergent. Plaintiff claims that the actions by Defendants Wilber, Vikjord, Price, Frescura, Hernandez, and Castro were out of retaliation against Plaintiff's exercise of his protected right to file grievances against the government and that they engaged in other retaliatory actions against Plaintiff. Finally, Plaintiff claims that Defendants D. D. Sheppard-Brooks, I. Garza, M. L. Gonzales, Wilber, and James violated Plaintiff's Eighth Amendment rights through their deliberate indifference to a serious threat to Plaintiff's safety. Plaintiff alleges that he was given an R-suffix and that Defendants did not respond to his complaints that the R-suffix placed his life in danger from attack by other inmates.
Defendants filed their motion to dismiss on June 17, 2009. Defendants argue that they are entitled to dismissal because Plaintiff failed to properly exhaust his administrative remedies prior to filing this action and because Plaintiff's allegations fail to state a claim. Defendants allege that Plaintiff filed seven administrative grievances concerning his incarceration at CSP-Corcoran before he initiated this action. (Mem. of P. & A. in Supp. of Mot. to Dismiss Pl.'s Compl. 5:24-25.) Defendants further allege that five of those seven grievances had not yet been completed when Plaintiff initiated this lawsuit on September 25, 2006. (Mem. of P. & A. in Mot. to Dismiss 5:25-6:1.) Defendants allege that the remaining grievances were factually insufficient to put the institution on notice of Plaintiff's present claims. (Mem. of P. & A. in Mot. to Dismiss 6:1-2.)
Defendants also argue that Plaintiff's allegations fail to state a claim against Sheppard-Brooks or Garza. (Mem. of P. & A. in Mot. to Dismiss 9:17-18.) Defendants argue that Plaintiff has failed to allege that Sheppard-Brooks or Garza were aware that Plaintiff had been double-celled after he received his R-suffix and did not act with deliberate indifference. (Mem. of P. & A. in Mot. to Dismiss 9:18-11:17.) Defendants also argue that Plaintiff fails to state a claim for retaliation based on his tainted meals because Plaintiff does not allege it was motivated by protected conduct. (Mem. of P. & A. in Mot. to Dismiss 11:18-12:2.) Finally, Defendants argue that Defendant Gonzales is entitled to dismissal because her actions (denying Plaintiff's administrative grievance requesting that his R-suffix be removed) were not sufficient to state a claim. (Mem. of P. & A. in Mot. to Dismiss 12:3-13:13.)
In his opposition, Plaintiff argues that his administrative grievance complaining about his R-suffix, grievance Log No. 06-2480, was partially granted on August 8, 2006. (Pl.'s Opp'n to Defs.' Mot. to Dismiss His Compl. 1.) Plaintiff claims that at that point, the appeal was completed because there was no further relief available, though Plaintiff concedes that he continued to pursue his grievance to the Director's Level. (Pl.'s Opp'n 1.) However, Plaintiff also alleges that his R-suffix was not removed until October 5, 2006. (Pl.'s Opp'n 9.)
Plaintiff alleges that his grievance complaining about his dangerous cell-mate, grievance Log No. 06-3161, was exhausted before filing suit because it was an emergency appeal that was not processed within the five day time limit for emergency grievances because prison staff re-classified it as a normal prison grievance. (Pl.'s Opp'n 2.) Plaintiff also makes vague allegations that Defendants impeded Plaintiff's ability to exhaust by refusing or throwing away his grievances. (Pl.'s Opp'n 3.) Plaintiff also argues that his amended complaint was filed on March 28, 2008, long after his administrative grievances were fully exhausted. (Pl.'s Opp'n 1.)
In their reply to Plaintiff's opposition, Defendants argue that Plaintiff did not exhaust. First, Defendants argue that Plaintiff's vague allegations that he submitted an unidentified grievance that was rejected as untimely does not excuse him from exhausting. (Reply in Supp. of Mot. to Dismiss Pl.'s Compl. 2:20-25.) Defendants further concede that some responses to Plaintiff's grievances were untimely, however, the delays do not excuse Plaintiff from the exhaustion requirement because Plaintiff could have filed a timely appeal to the next level of review. (Reply 2:26-3:8.) In their reply, Defendants also withdraw their argument that Plaintiff has failed to link Sheppard-Brooks to any constitutional violation. (Reply 6 n.4.) Defendants continue to argue that Garza has not been linked to any constitutional violations and that both Sheppard-Brooks and Garza have not been shown to have acted with deliberate indifference. (Reply 6:9-8:6.) Defendants also continue to argue that Plaintiff failed to allege that Defendants' tainting his meals was motivated by protected conduct and that Gonzales' actions are not sufficient to hold him/her liable. (Reply 8:7-9:20.)
Plaintiff thereinafter filed a motion "to Supplement his Opposition to the Defendants' Motion to Dismiss Points & Authorities." (Doc. #51.) Plaintiff alleges that the prison official who responded to grievance Log No. COR-6-06-02480 told Plaintiff that the appeal was completed. (Pl.'s First Req. Asking to Allow Him to Supplement His Opp'n to the Defs.' Mot. to Dismiss P. & A. 1.) Plaintiff also reiterates that he has effectively exhausted his administrative remedies because his attempts to appeal were sufficient to put Defendants on notice of his claims, and that his remedies were exhausted by the time Plaintiff filed his Third Amended Complaint. (Pl.'s Supplement 2.)
Defendants argue that Plaintiff failed to properly exhaust his 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). 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 level, second formal level, and third formal level, also known as the "Director's Level." Cal. Code Regs. tit 15, § 3084.5.
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense which Defendants have the burden of raising and proving the absence of exhaustion. 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. Id. 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 ...