FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES THIRTY-DAY DEADLINE
Plaintiff James Cole ("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 March 13, 2009, against Defendants Munoz, Dicks, Rocha, and
Blasdell for retaliation in violation of the First Amendment and
excessive force in violation of the Eighth Amendment. (Doc. 1.)
Defendants filed a motion for judgment on the pleadings or in the
alternative an unenumerated motion to dismiss on August 9, 2010. (Doc.
22.) Plaintiff filed an opposition on December 10, 2010,*fn1
and Defendants filed a reply on December 13, 2010. (Docs. 26,
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, 623 F.3d. 813, 821 (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.
On September 28, 2007, Plaintiff filed an inmate grievance ("602"), alleging a due process violation for being denied a request to interview witnesses in preparation for a rule violation hearing, in which Plaintiff was accused of assaulting Defendant Dicks. Defendant Dicks allegedly removed the appeal from the box, and told Defendant Munoz of its contents. Defendant Munoz then ordered that the disciplinary hearing be conducted before his appeal could be heard. (Doc. 1, Comp., p. 4.)
On September 30, 2007, Defendants Rocha and Blasdell told Plaintiff that he was going to be taken for a "602 interview." Once they entered the rotunda, Plaintiff was told he was going to be taken to a rule violation hearing and had to wear a spit mask. Plaintiff responded that he didn't want to attend the hearing and asked to be taken back to his cell. Defendants Rocha and Blasdell refused to take him back to his cell, (id., § IV), and slammed Plaintiff face first against a wall and then onto the ground, (id., p. 4.) Correctional Officer Bowman rushed to the office and returned with Defendants Munoz and Dicks. (Id., § IV.)
Defendant Munoz slammed the spit mask over Plaintiff's face, striking him in the face, and then ordered Defendants Rocha and Blasdell to slam him to the ground and apply shackles to his ankles. Defendant Rocha and Blasdell were on top of Plaintiff and he was punched in the ribs and upper body eight to twelve times. (Id., p. 4.) Defendant Dicks did not intervene in the incident, but laughed at Plaintiff's request to be taken back to his cell and told Defendants Rocha and Blasdell to use excessive force against Plaintiff. (Id., pp. 3-4.) Defendant Munoz then ordered Defendants to drag Plaintiff to the office. (Id., p. 4.)
Plaintiff filed a 602 on October 7, 2007. (Id., p. 11.) On December 16, 2007, Plaintiff submitted an inmate request for interview asking for the status of the 602. He received a response on December 19, 2007, that the appeal was currently being reviewed in the warden's office and would be forwarded to him as soon as it was completed. (Id., p. 8.) On December 18, 2008, the response to Plaintiff's appeal was signed by the warden. (Id., p. 15.) Defendants allege that Plaintiff received a copy of the second level response on December 19, 2007. (Doc. 22-1, p. 3.)
On March 23, 2008, Plaintiff submitted a 602 complaining that he had contacted CCI Giacomi seven times, in writing, requesting a response to his second level appeal, and that an eighth request in writing had been sent through second watch floor staff. (Doc. 1, pp. 19-20.) On April 11, 2008, Ms. Jones noted that Cole had received a copy of the response on December 19, 2007, but sent him another copy. (Doc. 22-5, pp. 4, 55.) On April 29, 2008, Plaintiff submitted an inmate request for interview stating that he had asked for his 602 to be located. (Doc. 1, p. 8.) Plaintiff received a response dated May 6, 2008, stating that inmate appeals had been contacted regarded the complaint. (Id., p. 9.)
On June 7, 2008, CCI Giacomi attached a copy of the 602 to Plaintiff's request for an interview and forwarded it to Plaintiff. (Id., p. 19.) Plaintiff alleges that he did not receive a copy of the second level response until August 28, 2008. (Docs. 1, p. 23; 26, p. 1.) Plaintiff submitted the directors level review on September 11, 2008. The director's level appeal was screened out as it was not filed within working days of Plaintiff receiving the second level response. (Id., p. 17.) Plaintiff did not appeal the director's level response.
The parties agree that Plaintiff failed to exhaust his administrative remedies, the issue is whether exhaustion is excused. Where circumstances render exhaustion of remedies unavailable exhaustion is not required. Sapp. 623 F.3d at 822; Nunez v. Duncan, 591 F.3d 1217, 1225 (9th Cir. 2010.) An exception exists where the inmate took reasonable and appropriate steps to exhaust his ...