The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING (1) DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED IN PART AND DENIED IN PART, (2) DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM BE DENIED, AND (3) DEFENDANT'S MOTION TO DISMISS ON QUALIFIED IMMUNITY GROUNDS BE DENIED (Doc. 40) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations - Defendant's Motion to Dismiss
Plaintiff Dorian Davis aka Wali At-Taqi Davis, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 9, 2007. The action is proceeding on Plaintiff's amended complaint, filed May 8, 2008, against Defendant Warden
A. Hedgpeth for violation of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. Plaintiff's claims arise from the denial of outdoor exercise and other program opportunities during periods of lockdown at Kern Valley State Prison in Delano, California.
On June 29, 2009, Defendant filed a motion to dismiss for failure to exhaust, for failure to state a claim, and on qualified immunity grounds. Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on August 28, 2009, Defendant filed a reply on September 4, 2009, and the motion has been deemed submitted. Local Rule 230(l).
Defendant argues that Plaintiff failed to exhaust his claims in compliance with 42 U.S.C. § 1997e(a), subjecting the claims to dismissal. Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that "[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." Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 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).
The California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (West 2009). The process is initiated by submitting a CDCR 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 this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378 (2006); McKinney, 311 F.3d at 1199-1201.
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which Defendant has 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.
Plaintiff was transferred to Kern Valley State Prison (KVSP) on October 26, 2005. Plaintiff alleges that since his arrival, the yards he has been on have been locked down on and off, with a lockdown occurring every month. Plaintiff alleges that as a result of these recurring lockdowns, his right to outdoor exercise or out-of-cell recreation is being violated, and he is being deprived of his liberty interest in privileges such as canteen, quarterly packages, phone calls, visitation, outdoor or out-of-cell recreation, social contact with other inmates, physical law library access, and education, without due process of law.
2. Exhaustion of Eighth ...