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Gornick v. California Department of Corrections

February 24, 2010


The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge


Pending before the Court in this prisoner civil rights case is Defendants' Motion to Dismiss (Docket No. 47), which is now fully briefed and ripe for adjudication. Also pending are several motions filed by Petitioner (Docket Nos. 48 & 58). The Court, having reviewed the record in this matter and having considered the written arguments of the parties in the briefing, concludes that oral argument is unnecessary. Accordingly, the following Memorandum Decision and Order and Report and Recommendation is entered.


A. Standard of Law

Defendants seek dismissal of Plaintiff's entire action. A complaint should not be dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987)). In reviewing a case for dismissal, the Court is required to treat all allegations of material fact as true and to construe them in a light most favorable to the non-moving party. Id. (quoting Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir. 1985), cert. denied, 474 U.S. 1056 (1986)).

Defendants argue that Plaintiff failed to exhaust his administrative remedies as to his claims of retaliatory assault and failure to provide medical care after the assault. Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),*fn1 a prisoner is required to exhaust all of his administrative remedies within the prison system before he can bring a civil rights lawsuit challenging the conditions of his confinement. 42 U.S.C. § 1997e(a). "Proper" exhaustion of administrative remedies is required, meaning that "a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Woodford v. Ngo, 548 U.S. 81, 88 (2006). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007). The Jones v. Bock Court noted the important policy concern behind requiring exhaustion is that it "allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Id. at 204.

Failure to exhaust administrative remedies is an affirmative defense that should be brought as an unenumerated 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust administrative remedies, a court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. Defendants bear the burden of proving failure to exhaust. Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005).

C. California Prison Grievance Procedures

California Department of Correction and Rehabilitation ("CDCR") regulations provide a four-step administrative process for prisoner grievances, with each step, including the first, referred to as a "level of appeal." They are: (1) informal level of appeal with the staff involved in the action or decision; (2) first formal level of appeal with an appeals coordinator; (3) second formal level of appeal with the institution head, regional parole administrator, or their designee; and (4) third formal level of appeal with a designated representative of the director under supervision of the chief of inmate appeals. Cal.Code. Reg. tit. 15, § 3084.5. In some instances, prison officials can waive a level (discussed more fully below).

At every appeal level, including the first informal appeal level, the inmate "must submit the appeal within 15 working days of the event or decision being appealed, or of receiving an unacceptable lower level appeal decision." Id., § 3084.6(c). Also "at each level of review not waived, the original appeal shall be returned to the appellant with a written response stating the appeal issue and the reasons for the decision." Id., § 3084.5(g).

To file an informal level of appeal, a prisoner completes a two-page "CDC Form 602, Inmate/Parolee Appeal Form" ("602 Form") describing "the problem and action requested," id., § 3084.2(a), and submits it to the "staff involved in the action or decision." Id., § 3084.5(a). The staff member reviews the informal level appeal and provides a written response on the same form, reporting the action taken in the space provided and signing and dating the form. Id., § 3084.5(a)(2). The staff member's informal level response must be completed within 10 working days. Id., § 3084.6(b)(1). Making an "attempt to obtain informal level review is required before an appeal may be accepted for formal review," unless the problem fits within a category of complaints for which the informal appeal level is an exception as listed in §§ 3084.5(a)(3) and 3084.7, in which case the informal level is "waived." Id., § 3084.5(a)(1) & (a)(3).*fn2

To proceed to the first formal level appeal (which is the second step in the grievance process), the inmate uses the next space of the same 602 Form, where he is instructed: "If you are dissatisfied, explain below, attach supporting documents (Completed CDC115, Investigator's Report, Classification chrono, CDC 128, etc.) and submit to the Institution/Parole Region Appeals Coordinator for processing within 15 days of receipt of response." See CDC Form 602. The appeals coordinator screens the first formal level appeal, and may reject the appeal on any number of grounds, including appeals that do not include evidence that an informal level of appeal was completed (if required), or that do not include necessary supporting documents. Id., § 3084.3(c).*fn3 First level appeal responses shall be completed within 30 working days. Id., § 3084.6(b)(2). The regulations are silent as to whether an inmate can proceed to the second level of review if no response is received at the first level of review.*fn4 However, the regulations do specify that "[s]econd level review is for review of appeals denied at the first level or for which the first level is otherwise waived by the regulations." Id., § 3085.5(c) (emphasis added).

If the inmate proceeds to the second level of review (which is the third step in the grievance process), see id., second level appeal responses shall be completed within 20 working days, or 30 working days if the first level is waived pursuant to section 3084.5 (a)(3). Id., § 3084.6(b)(3). The regulations provide that the second formal level, with the exception provided in section 3084.7(d)(4)(B), "shall be completed prior to the appellant filing at the third formal level." Id., § 3085.5(c).

The third level of review (which is the fourth and final step in the grievance process) is "for review of appeals not resolved at second level with the exception provided in section 3084.7(d)(4)(B)." Id., ยง 3084.5(d). Third level responses ...

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