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Daniel Portugal v. T. Felker

December 15, 2010

DANIEL PORTUGAL, PLAINTIFF,
v.
T. FELKER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS*fn1

Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Presently pending before the court is defendants' motion to dismiss plaintiff's complaint based on the alleged failure of plaintiff to exhaust his administrative remedies before filing suit. (Dkt. No. 26.) Plaintiff has filed an opposition (Dkt. No. 27), and defendants have filed a reply (Dkt. No. 28). For the following reasons, the court recommends that defendants' motion be granted.

I. Background

Plaintiff is proceeding on his Second Amended Complaint ("SAC" or "complaint") filed June 12, 2009,*fn2 on claims that his confidential mail was improperly opened by correctional staff while plaintiff was incarcerated at High Desert State Prison ("HDSP") in Susanville, California. (Dkt. No. 13.)

Defendants move to dismiss this action in its entirety based on their contention that plaintiff has failed to exhaust his administrative remedies.

II. Legal Standards

The Prison Litigation Reform Act ("PLRA") provides that, "[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). Pursuant to this rule, prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001). Moreover, such exhaustion requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules (e.g., deadlines). Woodford v. Ngo, 548 U.S. 81 (2006).

"The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Jones v. Bock, 549 U.S. 199, 218 (2007). In California, prisoners are required to lodge their administrative complaint on a CDC Form 602 which in turn requires only that the prisoner "describe the problem and action requested." Cal. Code Regs. tit. 15, § 3084.2(a). In Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009), adopting the standard enunciated in Strong v. David, 297 F.3d 646 (7th Cir. 2002), the Ninth Circuit held that "when a prison's grievance procedures are silent or incomplete as to factual specificity, 'a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.'" Griffin, 557 F.3d at 1120 (reviewing Arizona procedures), quoting Strong, 297 F.3d at 650. "A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Griffin, 557 F.3d at 1120; accord, Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010) (California grievance procedures).

Further, absent an express requirement to the contrary (which does not exist in the California prison grievance process) "exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances." Jones, 549 U.S. at 219. It is nonetheless appropriate to require that a prisoner demonstrate, through the administrative grievance process and consistent with the PLRA, that he has standing to pursue his claims against a particular defendant. "At an irreducible minimum, Article III [of the United States Constitution] requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (citation and internal quotation marks omitted).

While, under limited circumstances, a plaintiff may add newly exhausted claims to an existing action, see Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010) (authorizing amended complaint containing newly exhausted claims based on related conduct that occurred after the filing of the original complaint), generally "a prisoner must exhaust his administrative remedies for the claims contained within his complaint before that complaint is tendered to the district court," id. at 1004, citing McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam); and Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006).

The exhaustion requirement applies to all section 1983 claims regardless of whether the prisoner files his or her claim in state or federal court. Johnson v. Louisiana ex rel. Louisiana Dept. of Public Safety and Corrections, 468 F.3d 278 (5th Cir. 2006). Significantly, however, this exhaustion requirement is not jurisdictional but an affirmative defense that may be raised by a defendant in a non-enumerated Rule 12(b) motion. See Jones, 549 U.S. at 216 ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints."); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119.

"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust -- a procedure closely analogous to summary judgment -- then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120 n.14. However, when the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) ("mixed" complaints may proceed on exhausted claims). Thus, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221. However, in circumstances where a mixed complaint includes exhausted and unexhausted claims that are "closely related and difficult to untangle . . . dismissal of the defective complaint with leave to amend to allege only fully exhausted claims [ ] is the proper approach." Lira, 427 F.3d at 1176.

III. Analysis

At issue is whether plaintiff exhausted all available administrative remedies relative to the two grievances on which his complaint is premised. The ...


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