The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED IN PART AND DENIED IN PART (Doc. 40.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Plaintiff Eric Charles Rodney K'napp ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Original Complaint commencing this action on November 22, 2006. (Doc. 1.) This action now proceeds on the Second Amended Complaint filed by Plaintiff on November 13, 2008, against defendants Warden Derral G. Adams, Sergeant ("Sgt.") C. Pugliese, Lieutenant ("Lt.") E. Smith, K. Motty, R. Guerrero, E. Meaders, Sgt. B. Johnson, Captain D. Cuevas, Lt. J. T. Tucker, Associate Warden S. Sherman, D. Selvy (Classification Services Representative), and Does 1-5 (Mailroom Workers) for retaliating against Plaintiff, and against defendants K. Motty, Sgt. C. Pugliese, Lt. Smith, R. Guerrero, Appeals Coordinator Cooper, Appeals Coordinator V. R. Garcia, Appeals Coordinator R. Hall, and Does 1-5 (Mailroom Workers) for interfering with his right to send mail in violation of the First Amendment.*fn1
(Doc. 16.) Plaintiff is presently incarcerated at the Sierra Conservation Center in Jamestown, California. On February 19, 2010, defendants Adams, Selvy, Motty, Cuevas, Sherman, Hall, Pugliese and Smith ("Defendants") filed a motion to dismiss for failure to exhaust administrative remedies.*fn2 (Doc. 40.) On March 17, 2010, Plaintiff filed an Opposition to the motion.*fn3 (Doc. 41.) On April 15, 2010, Defendants filed a Reply. (Doc. 48.) Defendants' motion to dismiss is now before the Court.
II. SUMMARY OF PLAINTIFF'S ALLEGATIONS AND CLAIMS
Plaintiff makes allegations and brings claims as follows in the Second Amended Complaint.*fn4
At the time of the events at issue, Plaintiff was incarcerated at the California Substance Abuse Treatment Facility ("SATF"), and Defendants were all employees of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff requests money damages, declaratory relief, and injunctive relief.
A. RETALIATION -- Defendants Adams, Pugliese, Smith, Motty, Guerrero, Meaders, Johnson, Cuevas, Tucker, Sherman, Selvy, and Does 1-5
Plaintiff claims that defendants Adams, Pugliese, Smith, Motty, Guerrero, Meaders, Johnson, Cuevas, Tucker, Sherman, Selvy, and Does 1-5 retaliated against him, in violation of the First Amendment, because Plaintiff complained of the conditions and abuses in prison and filed prisoner grievances and lawsuits.
Plaintiff alleges that defendants Pugliese, Smith, Motty, Guerrero, Meaders, Johnson, and Does 1-5 denied him indigent correspondence supplies, delayed his mail, obstructed his outgoing mail, and denied him all but the May 2005 issue of his subscription of Prison Legal News. Plaintiff alleges that defendant Johnson issued a false disciplinary write-up against Plaintiff for having a clothesline inside his cell. Plaintiff alleges that defendants Adams and Cuevas instructed CDCR personnel at SATF to limit Plaintiff to a sixty-minute non-contact visit with a visitor who had come over 250 miles to see Plaintiff. Plaintiff alleges that defendant Tucker issued an order falsely alleging that Plaintiff presented an immediate threat to safety and security at SATF, such that Plaintiff was handcuffed, subjected to an unclothed body search, placed in a small cage, and subsequently placed in an Ad-Seg cell where the exterior window had been painted over, and all personal property, liberty, and privileges were taken away. Plaintiff also alleges that defendant Smith retained Plaintiff in AdSeg, and that defendants Sherman, Smith, and Selvy transferred Plaintiff to another prison.
B. MAIL INTERFERENCE -- Defendants Motty, Pugliese, Smith, Guerrero, Cooper, Garcia, Hall, and Does 1-5
Plaintiff claims that defendants Motty, Pugliese, Smith, Guerrero, Cooper, Garcia, Hall, and Does 1-5 interfered with his constitutional right to send mail, when they delayed his outgoing mail due to issues about Plaintiff's compliance with indigent mailing requirements /regulations.
III. STATUTORY EXHAUSTION REQUIREMENT
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[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 must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001). "Proper exhaustion[, which] demands compliance with an agency's deadlines and other critical procedural rules...." is required, Woodford v. Ngo, 548 U.S. 81, 90 (2006), and may not be satisfied "by filing an untimely or otherwise procedurally defective... appeal." Id. at 83-84.
The PLRA requires a prisoner to exhaust "such administrative remedies as are available" before suing over prison conditions. 42 U.S.C. § 1997e(a). The Booth court held that the PLRA requires administrative exhaustion even where the grievance process does not permit award of money damages and the prisoner seeks only money damages, as long as the grievance tribunal has authority to take some responsive action. Booth, 532 U.S. at 732. "The meaning of the phrase 'administrative remedies... available' is the crux of the case." Id. at 731. In discussing the meaning of the term "remedy," the court noted that "depending on where one looks, 'remedy' can mean either specific relief obtainable at the end of a process of seeking redress, or the process itself, the procedural avenue leading to some relief." Id. at 738. (emphasis added.) Thus, the court determined that the language of the statute, which requires that the "available" "remed[y]" must be "exhausted" before a complaint under § 1983 may be entertained, refers to "exhaustion" of the process available. Id. at 738-739. (emphasis added.) It follows, then, that if an inmate exhausts the process that is made available to him, he has satisfied the requirement of the statute. "Availability" of relief for purposes of the exhaustion requirement under the PLRA turns on how the prison views and treats a prisoner's complaint based on its own procedures. Brown v. Valoff, 422 F.3d 926, 942 (9th Cir. 2004).
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.
42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 215-16 (2007); 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 ...