The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED (Doc. 23) OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Robert Rogers ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's claim that Defendants Walker, Miller, Montgomery, Alvarez, Scribner, Stockman, Ortiz, Bravo, Yamamoto, Vella, and Villareal violated Plaintiff's rights under the Due Process Clause of the Fourteenth Amendment. The events described in Plaintiff's complaint took place while Plaintiff was incarcerated at the California State Prison in Corcoran, California ("CSP-Corcoran").
On January 4, 2010, Defendants Scribner, Walker, Miller, Stockman, Ortiz, Bravo, Yamamoto, Vella, and Villareal filed a motion to dismiss based on Plaintiff's failure to exhaust his administrative remedies prior to filing suit.*fn1 (Doc. #23.) On January 22, 2010, Plaintiff filed an opposition to Defendants' motion to dismiss. (Doc. #25.) Defendants filed a reply to Plaintiff's opposition on February 4, 2010. (Doc. #30.)
Plaintiff filed the original complaint in this action on April 28, 2005. (Doc. #1.) Plaintiff's complaint alleged that Defendants placed Plaintiff in administrative segregation ("ad-seg") in February 2002 for being suspected of trafficking marijuana in CSP-Corcoran. Plaintiff claimed that he was placed in ad-seg for 835 days. Plaintiff further claimed that he possessed a protected liberty interest in avoiding his ad-seg confinement because the duration of his confinement combined with the restrictive conditions in ad-seg constitute an atypical and significant hardship that warrants due process protection. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (liberty interests created by state law generally limited to freedom from restraint which imposes atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life).
Plaintiff further alleged that he was deprived of his protected liberty interest in avoiding 835 days of ad-seg confinement without the necessary procedural safeguards guaranteed by the Due Process Clause. Plaintiff complained that he was not given sufficient information regarding the evidence used to justify his ad-seg placement and complained about several procedural deficiencies with respect to his disciplinary hearing.
After screening Plaintiff's complaint pursuant to 28 U.S.C. § 1915A, the Court found that Plaintiff stated cognizable due process claims against Defendants Walker, Miller, Montgomery, Alvarez, Scribner, Stockman, Ortiz, Bravo, Yamamoto, Vella, and Villareal. Plaintiff was given the option to amend his complaint, or to proceed only on the due process claims.*fn2 Plaintiff opted to proceed only on his due process claims.
B. Defendants' Motion to Dismiss
Defendants argue that they are entitled to dismissal of this action because Plaintiff has failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act ("PLRA"). (Defs.' Notice of Mot. and Mot. to Dismiss [FRCP 12(b)]; Mem. of P. & A. in Supp. Thereof 1:22- 27.) Defendants contend that the PLRA requires that an inmate exhaust all available administrative remedies prior to filing suit. (Mot. to Dismiss 4:28-5:3.) Defendants argue that in order to effectively exhaust all available administrative remedies, prisoners must file an appeal within fifteen (15) working days of the event or decision being appealed. (Mot. to Dismiss 5:27-6:2.) Defendants also allege that the inmate appeals process within the California Department of Corrections and Rehabilitations consists of several levels of appeals: (1) informal resolution; (2) formal written appeal on a CDC Form 602 ("CDC 602"); (3) second level appeal to the institution head; and (4) third level appeal (or "Director's Level Review"). (Mot. to Dismiss 6:3-6.) Defendants argue that the failure to pursue an administrative grievance through all four levels of appeal constitutes failure to exhaust all available administrative remedies. (Mot. to Dismiss 6:6-8.)
Defendants claim that Plaintiff filed a CDC 602 on June 28, 2004.*fn3 (Mot. to Dismiss 6:22-25.) Defendants further allege that Plaintiff's appeal was rejected as untimely by an appeals coordinator on July 6, 2004 and at the Director's Level Review on December 27, 2004. (Mot. to Dismiss 6:22-25.) Defendants contend that Plaintiff's only other reference to any administrative appeals is a June 3, 2004 appeal alleged to have been mistakenly forwarded to the parole office. (Mot. to Dismiss 6:25-28.)
Defendants argue that the June 28, 2004 appeal and the alleged June 3, 2004 appeal were untimely and fail to constitute exhaustion of Plaintiff's administrative remedies. Defendants contend that Plaintiff was placed in ad-seg on February 5, 2002 based on a pending Rules Violation Report ("RVR"). (Mot. to Dismiss 7:2-3.) Plaintiff was found guilty of the RVR in September 2002. (Mot. to Dismiss 7:5.) A Classification Staff Representative ("CSR") found evidentiary deficiencies in the RVR decision and the RVR was reissued and reheard. (Mot. to Dismiss 7:5-7.) Plaintiff was found guilty again in March 2003. (Mot. to Dismiss 7:7-8.) A CSR reviewed the second decision and again found due process concerns. (Mot. to Dismiss 7:8-9.) A third RVR was issued in October 2003, but the Institutional Classification Committee ("ICC") elected to release Plaintiff back to the general population. (Mot. to Dismiss 7:9-11.) Plaintiff refused to return to the general population on January 9, 2004. (Mot. to Dismiss 7:9-11.) On January 28, 2004, Plaintiff was informed that he would be transferred to another facility and the next day the ICC informed Plaintiff that the charges against him were dismissed. (Mot. to Dismiss 7:11-14.)
Defendants argue that Plaintiff has failed to comply with the CDCR's appeals process requirements and, has therefore, failed to exhaust his administrative remedies. (Mot. to Dismiss 7:15-17.) The CDCR appeals process requires Plaintiff to submit an appeal within fifteen (15) working days of the event or decision being appealed. (Mot. to Dismiss 7:17-19.) Defendants contend that the issues being appealed are the alleged due process violations related to Plaintiff's RVR and ICC hearings. (Mot. to Dismiss 7:22-23.) Defendants argue that, at the latest, the fifteen (15) day deadline began to accrue on January 9, 2004, the day the ICC elected to release Plaintiff back to general population. (Mot. to Dismiss 7:25-28.) In support of this argument Defendants cite the fact that Plaintiff's June 28, 2004 appeal explicitly states that the relevant events at issue occurred between February 5, 2002 and January 8, 2004. (Mot. to Dismiss 7:28-8:4.) In his appeal, Plaintiff wrote that:
Appellate contends that each reviewer of the Rules Violation Reports, Ad Seg. Orders, including I.C.C. members are liable for damages suffered between 2/5/02 and 1/8/04, while he was in Ad. Seg. and the Due ...