FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. Defendants Brown, Kissinger, Watkins,
Hook, Kirkland, Handshumaker, Essman, Lower, Felker, Sanchez, Garate,
Aurich, Ramsey, and Kirkland ("defendants") move to dismiss on the
ground that plaintiff has failed to exhaust administrative
remedies.*fn1 See Defs.' Mot. to Dism., Dckt. No. 23
("Mot."). Plaintiff filed an opposition and defendants filed a reply.
Dckt. Nos. 25, 31. Thereafter, plaintiff filed a surreply.*fn2
Dckt. No. 37. For the reasons that follow, the court
recommends that the motion be denied.
I. Exhaustion Under The PLRA
The Prison Litigation Reform Act (PLRA) provides that "no action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Prison conditions" subject to the exhaustion requirement have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prisons." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint, but need only provide the level of detail required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case").
Prisoners who file grievances must use a form provided by the California Department of Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline the action requested. The grievance process, as defined by California regulations, has three levels of review to address an inmate's claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, § 3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.1(b).
Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford v. Ngo, 548 U.S. 81, 90 (2006). However, an inmate is required to exhaust those remedies that are available; for a remedy to be "available," there must be the "possibility of some relief. . . ." Booth, 532 U.S. at 738. Relying on Booth, the Ninth Circuit has held:
[A] prisoner need not press on to exhaust further levels of review once he has received all "available" remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.
Although a motion to dismiss for failure to exhaust administrative remedies prior to filing suit is normally brought under Rule 12(b) of the Federal Rules of Civil Procedure, Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), when ruling on such a motion requires the court to look beyond the pleadings in the context of disputed issues of fact the court must do so under "a procedure closely analogous to summary judgment." Id. 1119, n.14. Because care must be taken not to resolve credibility on paper as it pertains to disputed issues of material fact, the undersigned applies the standards applicable under Rule 56 to exhaustion motions which require consideration of materials extrinsic to the complaint. See Chatman v. Felker, No. Civ. S-06-2912 LKK EFB, 2010 WL 3431806, at *2-3 (E.D. Cal. Aug. 31, 2010).
Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119. To bear this burden: a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case . . . . With regard to the latter category of evidence, information provided [to] the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, "available."
Brown, 422 F.3dat 936-37 (citations omitted).
On April 12, 2010, the court advised plaintiff of the requirements for opposing a motion to dismiss for failure to exhaust available administrative remedies as well as a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988); Wyatt, 315 F.3d at 1120, n.14.
II. Plaintiff's Allegations
This action proceeds on plaintiff's original complaint. Compl., Dckt. No. 1 ("Compl."). Plaintiff alleges the following. On November 24, 2006, a member of the High Desert State Prison staff (defendant Aurich) was assaulted. Id. at 4.*fn3 Plaintiff, along with eighteen other inmates, was suspected of being involved. Id. After the assault, defendant Marsh kept plaintiff in handcuffs, and on his knees, contaminated with pepper spray, for over eight hours. Id. at 27. Defendants Marsh, Perry, Hook, Lower, Handshumacker, and Ramsey also took plaintiff outside for thirty minutes in sub-zero temperatures, while plaintiff was wearing only boxer shorts and ankle shackles. Id. at 9, 27. Despite various injuries and a need for medical attention, defendants Kirkland, Kissinger, and Perry denied plaintiff's requests for medical care. Id. at 24-25, 28. Plaintiff told defendant Watkins, a medical technical assistant, about his injuries, but she refused to treat him. Id. at 8. Watkins also falsified a medical report, indicating that plaintiff was allowed to decontaminate from the pepper spray, which was false. Id. Defendants Sanchez and Essman did not give plaintiff food from November 24, 2006 to November 28, 2006. Id. at 9-10. On November 28, 2006, defendant Kirkland pushed plaintiff into a holding cage, attempted to scrape plaintiff's face against the cage, and directed racial epithets at plaintiff. Id. at 10-11. Kirkland stripped plaintiff to his boxers and put him in a cell that was flooded with toilet water, had no mattress, bedding or hygiene items, and no soap to clean his wounds. Id. at 11-12. From this point through August 2007, Kirkland, who was sometimes joined by defendants Kissinger, Sanchez, Garate, or Aurich, would pull plaintiff from his cell at least every week for a cell search, and when plaintiff would return, his cell would be flooded with toilet water, and his property, including inmate appeals, his toothbrush, soap and bedding, would be missing or thrown in the toilet. Id. at 13, 15-17, 21-23. These defendants would also refuse to give plaintiff yard time, laundry service or other programs, tamper with or throw plaintiff's food at him, confiscate his incoming and outgoing mail, and direct racial epithets at him. Id. at 18-20. Kirkland continued to harass plaintiff until October 5, 2008. Id. at 18, 23-24, Exs. P, Q, R. On March 20, 2008, April 11, 2008, and April 27, 2008, plaintiff informed defendant Felker about the constant harassment from Kirkland and his junior officers. Id. at 23.
Liberally construed, plaintiff's complaint states the following claims: 1) Eighth Amendment claims against defendants Marsh, Perry, Hook, Lower, Handshumacker, Ramsey, Kirkland, Kissinger, Watkins, Sanchez, and Essman for their alleged treatment of plaintiff immediately following the November 24, 2006 assault; 2) Eighth Amendment and First Amendment retaliation claims against defendants Kirkland, Kissinger, Sanchez, Garate and Aurich, based upon plaintiff's allegations that between November 28, 2006 and October 5, 2008, one or more of these defendants continued to harass plaintiff by subjecting him to physical assaults, unnecessary cell searches and unsanitary conditions, depriving him of basic necessities, tampering with his food, using racial epithets, destroying his personal and legal property, including inmate appeals, denying him yard time and other programs, and throwing away his mail; and 3) an Eighth Amendment claim against defendant Felker, for allegedly failing to protect plaintiff from the constant harassment.
III. Plaintiff's Inmate Appeals
In support of their motion to dismiss, defendants submit: 1) portions of plaintiff's medical and central files; 2) the declaration of D. Foston, the Chief of the Inmate Appeals Branch for the California Department of Corrections and Rehabilitation ("Foston Decl."); and 3) the declaration of D. Clark, the Appeals Coordinator for the Institutional Appeals Office at High Desert State Prison ("Clark Decl."). According the Foston and Clark Declarations, only the following eight of plaintiff's inmate appeals were accepted for review between November 24, 2006 and November 26, 2008. Foston Decl. ¶¶ 3-5; Clark Decl. ¶¶ 6-8.
A. Appeal HDSP-Z-07-01911
This appeal is dated May 20, 2007. Clark Decl., Ex. 1. In this appeal, plaintiff challenged the Rules Violation Report finding him guilty of attempted murder on a peace officer and requested that the charge be expunged from his record. Id. Plaintiff also claimed that because of the charge, he was being retaliated against in that he was being denied access to his mail, and requested that he be transferred to another prison to avoid the retaliation. Id. Plaintiff pursued this appeal through the second level of review. Id. ¶ 8, Ex. 1.
B. Appeal HDSP-Z-07-02169
This appeal is dated June 17, 2007. Id., Ex. 2. Plaintiff claimed that from December 5, 2007 through June 14, 2007, Kirkland had tampered with plaintiff's food and conducted "random" cell searches in retaliation for plaintiff's attempted murder charge. Id. Plaintiff also claimed Kirkland had put his bedding, soap, shampoo and toothbrush in the toilet, threw away plaintiff's property, and denied him yard time. Id. Plaintiff stated he had filed many inmate appeals without ever getting a response back, because his ...