The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED AND ACTION BE DISMISSED WITHOUT PREJUDICE/ OBJECTIONS DUE WITHIN 30 DAYS (Doc. 23)
Findings And Recommendations
Plaintiff Robert Trevino ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed October 29, 2008, against Defendants Cano and Roberts for retaliation in violation of the First Amendment. On November 20, 2009, after receiving an extension of time, Defendants Cano and Roberts filed a motion to dismiss pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b), for Plaintiff's failure to exhaust administrative remedies. (Doc. 23, Defs.' Mot. To Dismiss.) On December 2, 2009, Plaintiff filed his opposition.*fn1 (Doc. 24, Pl.'s Opp'n.) Defendants did not file a reply. This matter is deemed submitted pursuant to Local Rule 230(l).
Defendants Cano and Roberts pulled Plaintiff and his former cell mate out of their cell to conduct a search. (Compl., 4:22-24.) This was the second cell search in a week. ( Id. at 4:25-26.) All the personal property that was confiscated was not contraband, and some of the property was legal property pertaining to two active cases. ( Id. at 4:27-5:3.) Plaintiff confronted defendants Cano and Roberts regarding the confiscation of his property, and demanded a confiscation receipt from defendants Cano and Roberts. ( Id. at 5:23-6:1.) Plaintiff contends that the defendants' deprivation of his property constitutes retaliation against Plaintiff for filing lawsuits. ( Id. at 8:1-7.) Plaintiff seeks injunctive relief and money damages.*fn2
III. Exhaustion Of 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, 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).
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 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 and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2010). 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, 85-86, 126 S.Ct. 2378 (2006); McKinney , 311 F.3d at 1199-1201. Exhaustion does not always require pursuit of an appeal through the Director's Level of review. What is required to satisfy exhaustion is a fact specific inquiry, and may be dependent upon prison officials' response to the appeal. See Nunez v. Duncan , 591 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of exceptions to exhaustion requirement from other circuits); Brown v. Valoff , 422 F.3d 926, 935-36 (9th Cir. 2005) ("[E]ntirely pointless exhaustion" not required).
Here, Defendants contend that Plaintiff failed to exhaust administrative remedies as to Plaintiff's retaliation claim. Defendants concede that the inmate grievance applicable to this incident, PVSP-A-07-2909, was fully exhausted. (Mot. To Dismiss 5:7-16.) However, Defendants contend that the grievance exhausted only a due process claim, which the Court had dismissed. ( Id. at 5:17-20.) The only claim pending before the Court currently is Plaintiff's retaliation claim. ( Id. at 5:21-22.) Defendants contend that Plaintiff's grievance does not provide sufficient notice of retaliatory action being taken because of Plaintiff's protected conduct.
Plaintiff contends in opposition that he had fully exhausted his administrative remedies with the above grievance by appealing to the Director's level prior to filing suit. (Pl.'s Opp'n 2.) Plaintiff's contention fails to address Defendants' contention that ...