The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED (Doc. 73) THIRTY-DAY OBJECTION PERIOD
Findings and Recommendations on Defendants' Motion to Dismiss
Plaintiff Charles Walton, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 20, 2007. This action for damages is proceeding on Plaintiff's amended complaint, filed June 30, 2008, against Defendants Ochoa, Meyers, Chaffer, Tonge, Clendaniel, Miller, Lambert, Haley, Arline, Contreras, and DonDiego on Plaintiff's Eighth Amendment claim arising from unsafe conditions of confinement. On October 16, 2009, Defendants Ochoa, Meyers, Chaffer, Tonge, Clendaniel, Lambert, Haley, Arline, Contreras, and DonDiego filed a motion to dismiss for failure to exhaust. Plaintiff filed an opposition on January 5, 2010, and Defendants filed a reply on January 15, 2010.
Defendants argue that Plaintiff failed to exhaust his claim in compliance with 42 U.S.C. § 1997e(a), subjecting this action 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 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. 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's Eighth Amendment claim arises from unconstitutional conditions of confinement at Avenal State Prison in 2007, including urine and feces left standing in toilets, overflowing toilets, and waste water left standing on the floors from sinks with no traps. (Doc. 34, Amend. Comp.) Plaintiff alleges injuries arising from the exposure to these health hazards. (Id.)
Defendants submit evidence that Plaintiff filed an appeal on June 7, 2007, grieving unsanitary conditions of confinement. (Amend. Comp., Ex. D; Doc. 64-2, Motion, Lopez Dec., ¶5.) The appeal was partially granted on August 20, 2007, at the first formal level of review. (Amend. Comp., Ex. D; Motion, Lopez Dec., ¶6.) Thereafter, on September 4, 2007, the appeal was screened out because Plaintiff failed to comply with the procedures governing group appeals and because his attachments exceeded the one page limit. (Motion, Lopez Dec., ¶¶6-8 & Attach. 1.) Plaintiff was directed to remove the unnecessary documents and resubmit the appeal, but did not do so. (Id.) Defendants contend that Plaintiff failed to exhaust his appeal and even if the partial grant somehow arguably constituted exhaustion, the decision was issued after this suit was filed, entitling them to dismissal of this action.
Plaintiff argues that his letter to Judge Henderson was not a complaint, and that his appeal was exhausted by the time this action was brought via the first amended complaint filed on June 30, 2008. Plaintiff contends that prison officials' failure to respond to his appeal by August 6, 2007, rendered the appeals process unavailable, thereby satisfying the exhaustion requirement. Plaintiff also challenges the propriety of screening out the appeal after a decision was issued.
A civil action is commenced when a complaint is filed, Fed. R. Civ. P. 3, and an action is "brought" in federal court for purposes of section1997e(a) when the complaint is tendered to the Clerk's Office, Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). The federal system is one of notice pleading and no particular form is required, although certain information must be included in order to state a claim. Fed. R. Civ. P. 8(a).
In this instance, Plaintiff sent a letter to the Honorable Thelton E. Henderson on June 20, 2007, clearly marked "Complaint Under 42 U.S.C. § 1983, and 28 U.S.C. 1367, and Title II of the ADA." (Doc. 1.) While in letter form, Plaintiff's notation of "Complaint" and citation to the federal statutes providing the legal bases for his claims, made on the first page of the letter, leave no doubt that the document was intended to be a civil complaint and was properly treated as a civil complaint by the court. Although no further inquiry into Plaintiff's intent to file a civil suit is necessary in light of the letter's caption, the Court notes that Plaintiff also filed a motion for an extension of time to file his in forma pauperis application on July 19, 2007, again evidencing an intent to proceed forward with a civil action. Plaintiff's argument that his June 20, 2007, letter was not a complaint and that ...