FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING UNENUMERATED 12(b) MOTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND RECOMMENDING DISMISSAL OF ACTION WITHOUT PREJUDICE
I. Procedural History and Facts
Lamont Shepard ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's original complaint, filed September 15, 2009, against Defendants Cohen, Lopez, Campbell, Dean and Jane Doe ("Defendants") for the involuntary administration of anti-psychotic medication, in violation of the Due Process Clause of the Fourteenth Amendment. On August 11, 2010, Defendants filed an unenumerated 12(b) motion to dismiss the action due to the Plaintiff's failure to exhaust administrative remedies.
Plaintiff's administrative appeal was submitted on December 14, 2008. (Doc. 18 at p. 2; Doc. 17 at Ex. A). The administrative appeal was partially granted at the first formal level on February 23, 2009. (Doc. 17 at p. 4; Doc. 17 at Ex. A). Plaintiff's second formal level appeal was denied on May 7, 2009. (Doc. 17 at p. 4; Doc. 17 at Ex. A). Plaintiff's third level (also known as the "Director's Level") appeal was received on May 26, 2009. (Doc. 18 at p. 2). Plaintiff filed the action on September 15, 2009. (Doc. 1). As of August 4, 2010, (the declaration date from the Office of Third Level Appeals) the third level appeal was still pending. (Doc. 17 at p. 4; Doc. 17 at Ex. A).
II. 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). In order to satisfy section 1997e(a), California state prisoners are required to use the available process to exhaust their claims prior to filing suit. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). "[E]xhaustion is mandatory under the PLRA and . . . unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524). "All 'available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be 'plain, speedy, and effective.'" Porter, 534 U.S. at 524 (quoting Booth v. Churner, 532 U.S. 731, 739 n.5). The Court must dismiss a case without prejudice even when there is exhaustion while the suit is pending. Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005).
Exhaustion is required regardless of the relief sought by the prisoner. Booth v. Churner, 532 U.S. 731, 741 (2001). A prisoner must "must use all steps the prison holds out, enabling the prison to reach the merits of the issue." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009); see also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). A prisoner's concession to non-exhaustion is valid grounds for dismissal so long as no exception to exhaustion applies. 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).
California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2009); see also Woodford v. Ngo, 548 U.S. 81, 86. The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level (the "Director's Level"). Id. at § 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. at §§ 3084.5, 3084.6(c). Director's Level responses are to be completed within sixty working days, and the time limit commences upon receipt of the appeal by the appeals coordinator. Id. at §§ 3084.6(a), (b)(4) (2009).*fn1 Weekends and state holidays do not constitute working days. Id. at § 4003(j)(2). There are also exceptions to the sixty working day requirement in the event of:
(A) Unavailability of the appellant, or staff or inmate witnesses.
(B) Complexity of the decision, action, or policy.
(C) Necessary involvement of other agencies or jurisdictions.
Id. at § 3084.6(b)(5). For an "exceptional delay" that "prevents completion of the review within specified time limits," the Director's Level appeal is exempted from the requirement of notifying the appellant of the reasons for the delay and the estimated completion date. Id. at § 3084.6(b)(6).
Sixty working days had passed in August 2009 and Plaintiff filed his complaint in September 2009. Since the Director's Level appeal was received, over a year has passed with the appeal still pending. In the declaration of J. Walker, the Chief of the Office of Third Level Appeals-Health Care (OTLA-HC)), Walker states: "Although the OTLA-HC works hard to decide appeals in a timely fashion, the large volume of appeals makes that task difficult. Mr. Shepard's appeal will be decided by the OTLA-HC as quickly as possible." (Doc. 17 at Ex. A).
Plaintiff argues that the exhaustion requirement is satisfied (or that a prisoner is excused from exhausting administrative remedies) if a prisoner files a grievance and receives no response within the time allotted under sections 3084.6(a) and (b)(4) of the grievance procedure.*fn2 In Brown v. Valoff, the Ninth Circuit noted that it would "'refuse to interpret the PLRA so narrowly as to . . . permit [prison officials] to exploit the exhaustion requirement through indefinite delay in responding to grievances,'" and that "[d]elay in responding to a grievance, particularly, a time-sensitive one, may demonstrate that no administrative process is in fact available." 422 F.3d 926, 943 n.18 (quoting Lewis v. Washington, 300F.3d 829, 833 (7th Cir.2002)). Ultimately, the Ninth Circuit concluded that the plaintiff was not "prejudiced by the long time it took to conclude the investigation into [plaintiff's] staff complaint." Id. In Ngo, the United State Supreme Court left "open the possibility that an exception to the exhaustion requirement might exist" in circumstances where "the prison had created ...