The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION TO DISMISS BE GRANTED AND THIS ACTION DISMISSED WITHOUT PREJUDICE (ECF NO. 38) OBJECTIONS DUE WITHIN 30 DAYS
Findings And Recommendations
Plaintiff Carlos Hendon ("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 third amended complaint, filed March 17, 2008, against Defendant Peterson for violation of the Fourteenth Amendment. On February 8, 2010, Defendant filed a motion to dismiss pursuant to the unenuemerated portion of Federal Rule of Civil Procedure 12(b), for Plaintiff's failure to exhaust administrative remedies. (Def.'s Mot. Dismiss, ECF No. 38.) On March 22, 2010, Plaintiff received a ninety day extension of time to file an opposition. As of the date of these Findings and Recommendations, Plaintiff has not filed a response or otherwise responded. Plaintiff thus waives the filing of an opposition to Defendant's motion. The matter is deemed submitted pursuant to Local Rule 230(l).*fn1
II. Summary Of Third Amended Complaint
Plaintiff alleges that the events at issue occurred at California Correctional Institution ("CCI") in Tehachapi, California, where Plaintiff was previously housed. Plaintiff claims that on April 7, 2003, Defendant Peterson confiscated Plaintiff's property, which comprised of seven pornographic magazines and a photo album with frontal nude pictures. Plaintiff alleges that Defendant Peterson did not give him the opportunity to dispose of these items per institutional procedure.
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 (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).
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, 549 U.S. at 216; 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. Id. 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 § 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. 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).
Defendant contends that Plaintiff failed to exhaust administrative remedies because Plaintiff failed to appeal his inmate grievance to the Director's level. (Mem. P. & A. Supp. Mot. Dismiss 4:17-24.) Defendant contends that Plaintiff failed to submit the necessary documents for Director level review. (Id.) Defendant submits a declaration by K. Sampson, appeals coordinator at CCI, a copy of the inmate appeals tracking system regarding Plaintiff's appeals, and inmate grievance No. CCI-9-03-1315. (K. Sampson Decl.; Ex. A, CDCR Inmate/Parolee Appeals Tracking System; Ex. B, Grievance No. CCI-9-03-1315.) Appeals coordinator Sampson attests to the authenticity of the attached documents.
Grievance No. CCI-9-03-1315 concerned the incident at issue in this action. Plaintiff requested that the property be sent out, or compensation for the loss of his property. (Ex. B, Grievance No. CCI-9-03-1315.) Plaintiff properly filed his grievance at the informal level on April 13, 2003, and ...