The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED OBJECTIONS DUE WITHIN 30 DAYS (ECF NO. 90)
Findings And Recommendations
Plaintiff Barry Louis Lamon ("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 against Defendants Magvas, Hernandez, Hamilton, Frescura, Cortez, Price, Alvarez, Aspeitia (spelled "Aspieda"), Vanzandt, Elize, Luna, Wilber, and Vikjord for violation of Plaintiff's rights under the First Amendment, Eighth Amendment, and California Civil Code section 52.1. On December 30, 2009, Defendants 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. (Defs.' Mot. Dismiss, ECF No. 90.)*fn1 On May 19, 2010, Plaintiff filed his opposition.*fn2 (Pl.'s Opp'n, ECF No. 109.) On May 24, 2010, Defendants filed their reply. (Defs.' Reply, ECF No. 100.) The matter is submitted pursuant to Local Rule 230(l).
II. Summary Of Third Amended Complaint
Plaintiff is incarcerated at Corcoran State Prison, where the events giving rise to this action occurred. Plaintiff alleges that from approximately September 15, 2006 through March 29, 2007, Defendants Luna, Price, Wilber, Vikjord, Aspieda, Magvass, Vanzant, Hamilton, Cortez, Frescura, Elize, Alvarez and Hernandez retaliated against Plaintiff by serving him only one-third to one-half portions of meals consisting of pan-scrapings, crumbs, remnants, and scraps of food.*fn3
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) (per curiam). 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).
Defendants contend that Plaintiff failed to exhaust administrative remedies prior to filing this action. Defendants contend that Plaintiff filed only two grievances on or after August 1, 2006, which falls within the "approximate" start date of the alleged retaliatory food deprivation: CSPC-6-06-4089 and CSPC-6-06-3312. (Defs.' Mem. P. & A. Support Mot. Dismiss 2:12-19; Jennifer Jones Decl., Exs. A and B.) Defendants contend that inmate grievance No. CSP-6-06-4089 concerned a food-tainting allegation, not reduced food portions. ( Id. at 2:20-3:2.) Defendants contend that CSPC-6-06-3312 concerned meaningful access to the law library, which is not a claim in this action. ( Id. at 3:3-11.)
Defendants also contend that inmate grievance No. CSPC-6-06-3275, which was submitted at the informal level on June 18, 2006, concerned contamination of his kosher food supply on or before June 2006, and is thus not relevant to this action. ( Id. at 3:12-20.) Defendants submit in support a declaration from Appeal Coordinator Jennifer Jones of Corcoran State Prison, who attests to the accuracy of the submitted grievances, Nos. CSPC-6-06-4089, CSPC-6-06-3312, and CSPC-6-06-3275. (Jennifer Jones Decl.; Ex. A, CDCR Inmate/Parolee Appeals Tracking ...