The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE OBJECTIONS DUE MARCH 15, 2011
Plaintiff George Hamilton ("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 proceeds on Plaintiff's August 20, 2008 First Amended Complaint against Defendants Aguirre and Lopez. Plaintiff alleges that Defendants subjected him to unlawful body searches in violation of the Fourth and Eighth Amendments and retaliated against him in violation of the First Amendment.
Before the Court is Defendants' Motion to Dismiss, in which Defendants argue that dismissal is appropriate because Plaintiff failed to exhaust his administrative remedies.*fn1 (ECF No. 64.) After multiple extensions, Plaintiff filed his Opposition to Defendants' Motion on February 3, 2011.*fn2 (ECF No. 96.) Defendants filed a reply on February 16, 2011. (ECF No. 99.)
For the reasons set forth below, the Court recommends that Defendants' Motion to Dismiss be granted.
"The Prison Litigation Reform Act [("PLRA")] requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997e(a)); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (quoting Porter v. Nussle, 534 U.S. 516, 525 n.4 (2002)) (The PLRA "creates 'a general rule of exhaustion' for prisoner civil rights cases."). "'[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.'" Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002) (quoting Porter, 534 U.S. at 532); accord Roles v. Maddox, 439
F.3d 1016, 1018 (9th Cir. 2006)). The PLRA's "exhaustion requirement is mandatory." McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam); accord Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court."); see also Panaro v. City of North Las Vegas, 432 F.3d 949, 954 (9th Cir. 2005) (The PLRA "represents a Congressional judgment that the federal courts may not consider a prisoner's civil rights claim when a remedy was not sought first in an available administrative grievance procedure.").
While the PLRA requires "proper" exhaustion of available administrative remedies, Woodford v. Ngo, 548 U.S. 81, 93 (2006), it does not define the boundaries of proper exhaustion. See Jones, 549 U.S. at 218. Rather, "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford, 548 U.S. at 90. "The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones, 549 U.S. at 218; see, e.g., Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009, as amended June 5, 2009) (per curiam) ("The California prison system's requirements define the boundaries of proper exhaustion.") (internal quotation marks and citation omitted).
The PLRA's exhaustion requirement is not jurisdictional; rather, it creates an affirmative defense that a defendant may raise in an unenumerated Rule 12(b) motion. See Jones, 549 U.S. at 213-14; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) The defendant bears the burden of raising and proving the absence of exhaustion. Wyatt, 315 F.3d at 1119. Specifically, the defendant must show that some administrative relief remains available to the plaintiff "whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process."
Brown, 422 F.3d at 936-37. In deciding a motion to dismiss for failure to exhaust, a court may "look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119-20.
In order for California prisoners to exhaust administrative remedies, they must proceed through several levels of appeal: 1) informal resolution, 2) formal written appeal on a CDC 602 inmate appeal form, 3) second level appeal to the institution head or designee, and 4) third level appeal to the Director of the California Department of Corrections. Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. xv, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement. Id. at 1237-38. When a prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120.
The events at the heart of Plaintiff's claims are a series of body searches conducted by Defendants on or about April 5, 2003, April 7, 2003, and April 8, 2003. (ECF Nos. 41 & 45.) In support of their Motion to Dismiss, Defendants have submitted the declaration of D. Fosten, Chief of CDCR's inmate appeals branch. Fosten's office receives all non-medical inmate appeals submitted to the Third (or highest) level of appeal. Because the events at issue here were non-medical in nature, a decision by Fosten's office would have fully exhausted Plaintiff's administrative remedies. (Fosten Decl. ¶ 5.) Fosten states that his staff reviewed Plaintiff's inmate appeal record and was unable to locate a third-level appeal related to the body searches at issue in this case. (Fosten Decl. ¶ 12.) Defendants have also included copies of Plaintiff's record from the Inmate Appeals Tracking System ("IATS").
Based on this evidence, Defendants argue that Plaintiff did not exhaust his administrative remedies. Plaintiff responds by attacking the credibility of the records kept in IATS. (Pl.'s Decl. ¶¶ 26-39.) He contends that the IATS system does not accurately ...