The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THE MOTION TO DISMISS FILED ON NOVEMBER 23, 2009 BE DENIED (Doc. 32) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Fateem L. Jackson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on September 27, 2007. Pursuant to the Court's order of March 9, 2009, this action proceeds on Plaintiff's First Amended Complaint, filed June 24, 2008, against Defendants Selbach, Rubin, Ortiz, Payan, Pantoja, Wood, Yoder, Fernandez, Carrasco, and Zanchi for violating Plaintiff's rights under the Fourth and Fourteenth Amendments of the United States Constitution.*fn1
On November 23, 2009, Defendants Selbach, Rubin, Payan, Pantoja, Wood, Yoder, Carrasco, and Zanchi filed a motion to dismiss for failure to exhaust administrative remedies on Plaintiff's claims against Defendants Pantoja, Payan, Rubin, Selbach, Wood, and Yoder (hereinafter "the Female Defendants"), Fed. R. Civ. P. 12(b), and all moving Defendants assert that they are entitled to qualified immunity. Plaintiff filed an opposition on February 1, 2010. Despite passage of ample time, Defendants did not file a reply. The motion has been deemed submitted. Local Rule 230(l).
Defendants argue 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 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, 435 U.S. 516, 532 (2002).
The California Department of Corrections and Rehabilitation (hereinafter "CDCR") 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 (hereinafter "CDCR 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 (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 a 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.
According to the First Amended Complaint, the strip-search policy at CCI, implemented in October of 2006 subsequent to an attack on prison staff by a single inmate, permits female correctional officers to participate routinely in visual body-cavity searches of male prisoners. Plaintiff alleges that prisoners at CCI are subjected to nude, full-body cavity searches before and after being released for outdoor exercise. Upon leaving or returning from outdoor exercise, correctional officers line prisoners up in groups of six in each housing unit's "chow hall" and then order the prisoners to disrobe. Prisoners are then given body-cavity search directives by one correctional officer while another officer searches the prisoners' clothing near by. The First Amended Complaint states that female correctional officers actively participate in conducting the body-cavity searches by either giving body-cavity search directives or searching the prisoners' clothing. The First Amended Complaint alleges that: Defendants Selback, Rubin, and Payan ordered Plaintiff to strip and then gave Plaintiff body-cavity search directives; and Defendants Pantoja, Wood, and Yoder participated in body-cavity searches of Plaintiff by searching his clothing three to four feet away from where Plaintiff was being given the body-cavity search directives.
The First Amended Complaint was found to state claims against the Female Defendants for their direct involvement in and/or near proximity during the routine visual body-cavity searches upon release to and return from outdoor exercise and against Defendants Zanchi and Carrasco for authorizing or approving the body-cavity search policy at CCI, and for failing to act to discontinue the policy when the emergency no longer existed, despite knowledge of the policy and authority to change it, in violation of Plaintiff's rights under the Fourth and Fourteenth Amendments of the United States Constitution. (Doc. 17, Screen F&R; Doc. 19, O Adopt.)
Thus, these are the claims that Plaintiff must have brought to the attention of prison personnel and pursued through all available administrative remedies in order to have met the ...