The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER STRIKING SURREPLY (Doc. 48) FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANT'S MOTION TO DISMISS BE GRANTED AND ACTION BE DISMISSED WITHOUT PREJUDICE (Docs. 35, 36) OBJECTIONS, IF ANY, DUE WITHIN 21 / DAYS
I. Findings and Recommendation
Plaintiff Michael J. Coe ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and The Religious Land Use and Institutionalized Persons Act ("RLUIPA") of 2000. This action is proceeding on Plaintiff's first amended complaint against Defendant Greene for violation of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and RLUIPA.*fn1 On July 28, 2009, Defendant filed a motion to dismiss pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure on the grounds that Plaintiff had failed to exhaust administrative remedies prior to filing this action. (Doc. 35, Def.'s Mot. To Dismiss.) On July 29, 2009, Defendant filed a subsequent amended filing for the exhibits. (Doc. 36.) On October 6, 2009, after receiving an extension of time, Plaintiff filed his opposition. (Doc. 43, Pl.'s Opp'n.) On October 20, 2009, Defendant filed his reply. The matter is deemed submitted pursuant to Local Rule 230(l).*fn2
On November 16, 2009, Plaintiff filed a further reply to the motion to dismiss. (Doc. 48.) The Court construes this filing as a sur-reply. Sur-replies are not generally allowed by this Court. See Local Rule 230(l). The Court neither requested nor granted leave for Plaintiff to file a surreply. Accordingly, Plaintiff's surreply, filed November 16, 2009, is HEREBY ORDERED stricken.*fn3
B. Summary Of Plaintiff's First Amended Complaint
Plaintiff was formerly incarcerated at Pleasant Valley State Prison ("PVSP"), where the events giving rise to this action allegedly occurred. Plaintiff alleges that while housed at PVSP, Defendant Greene interfered with Plaintiff's mail, retaliated against him for filing administrative grievances, violated RLUIPA by interfering with Plaintiff's access to the Native American sweat lodge, and allowed prisoners practicing other religions to access the chapel on weekly basis while denying similar access to Native American practitioners. Plaintiff seeks monetary damages as relief.
B. 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, 549 U.S. 199, 211 (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, 549 U.S. at 216; 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, 549 U.S. at 218-19 ("The level of detail necessary in a grievance to comply with the grievance 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 ...