FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (Doc.19
FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING DEFENDANT'S MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT AND REQUIRING SECURITY (Doc. 18) THIRTY-DAY DEADLINE
Plaintiff Steven Williams ("Plaintiff") is a state prisoner 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 on March 24, 2009, against Defendant D. Zanchi for retaliation. (Doc. 1.) On April 14, 2010, Defendant filed a motion to dismiss and a motion to declare Plaintiff a vexatious litigant. (Docs. 18, 19.) Plaintiff filed an opposition on May 5, 2010,*fn1 and Defendant filed a reply on May 12, 2010. (Docs. 21, 22.) Plaintiff filed a surreply on May 24, 2010. (Doc. 23.)
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). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006). All available remedies must be exhausted, not just those remedies that meet federal standards, Woodford, 548 U.S. at 84, nor must they be "plain, speedy, and effective," Booth v. Churner, 532 U.S. 731, 739 (2001). 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. Id at 741; see Woodford, 548 U.S. at 93.
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084, et seq. "Any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs., tit. 15 § 3084.1(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." Cal. Code Regs. tit 15, § 3084.5.
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense which defendants have the burden of raising and proving the absence of exhaustion. Lira v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). 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 1108, 1119 (9th Cir. 2003) (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, a court may look beyond the pleadings and decide disputed issues of fact." Sapp v. Kimbrell, __ F.3d. __, *4 (9th Cir. 2010) (quoting 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, even where there has been exhaustion while the suit is pending. Lira, 427 F.3d at 1171.
Plaintiff alleges that on August 14, 2008, in retaliation for filing a grievance, Defendant Zanchi moved him into a management cell for 44 days. (Docs. 1, p.12; 19-3, pp. 2-3, 5.) On September 20, 2008, Plaintiff completed a inmate appeal form, grievance 08-2698. (Doc. 19-3, p. 5.) The first level appeal was denied on December 10, 2008. (Id., pp. 6, 19-20.) The second level appeal was denied on January 20, 2009. (Id., pp. 6, 21-22.) On March 18, 2009, Plaintiff's directors level appeal was screened out and returned to Plaintiff for failure to comply with the appeal procedures, specifically it was missing CDC Form 128-G, Classification Chrono. (Id., p. 26.) Plaintiff filed this action on March 24, 2009. (Doc. 1.) On May 29, 2009, the director's level appeal decision was issued. (Docs. 19-2, pp. 2:26-3:3; 19-3, pp. 2-3.)
Defendant moves to dismiss the complaint because Plaintiff failed to exhaust his administrative remedies until more than two months after filing suit. (Doc. 19-1, p. 3:8-10, 17-18.) Plaintiff opposes the motion stating that the grievances he filed were not acted upon in compliance with the time lines set forth in Title 15 of the California Code of Regulations. (Doc. 21, p. 3.) Additionally, Plaintiff alleges that he did exhaust his administrative remedies with grievance 08-1985. (Doc. 23, p. 7.)
On July 30, 2008, approximately two weeks prior to being placed in the management cell, Plaintiff filed grievance 08-1985 alleging that Warden Gonzalez willfully generated a memo stating untrue facts. Plaintiff complained that he had been in administrative segregation since June 4, 2008, and was "denied access to the library, copies, research material, etc." (Doc. 1, pp. 78-79.) Additionally, Plaintiff alleged that conditions did not comply with the Americans With Disabilities Act ("ADA"), he was denied exercise, basic hygiene, mail, mental health programs, processing over 30 appeals, and access to activities that mainline inmates receive. Plaintiff alleged "[t]here's [sic] no modifications being done over here in [administrative segregation,] nothing but retaliation and denial of my rights to appeal and be answered, access to courts per [sic] law[,] access to exercise and fresh air, to be free from vile and proper sanitation, thus, denial of my ADA rights per the remedial plan. (Id., p.79.)
In his second level appeal, dated September 25, 2008, Plaintiff complained that he had been placed in a management cell on August 31, 2008 for litigating. Since the issue was not presented at the first level of the administrative process, grievance 08-1985 did not exhaust administrative remedies for the claim that Defendant Zanchi retaliated against Plaintiff by placing him in a management cell. Sapp, __ F.3d at *8.
Plaintiff's argues that it is clear on the face in this action that Defendants obstructed exhaustion in grievance 08-2698. (Doc. 23, p. 5.) A review of the grievance shows that at each level the date of completion is on or within one day of the due date. (Doc. 19-3, p. 6.) The only delay shown in processing the grievance was at the directors level, which was appropriately screened out because Plaintiff failed to attach all necessary supporting documents. Sapp, __ F.3d at *9. Plaintiff failed to exhaust administrative remedies since he filed this action prior to the directors level decision being issued in grievance 08-2698. Lira, ...