The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR PLAINTIFF'S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES(DOC. 37) CLERK OF THE COURT DIRECTED TO CLOSE THIS ACTION
Findings and Recommendation
Plaintiff Michael Reed Dorrough ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is 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 second amended complaint against Defendants F. Gonzales, M. Carrasco, and V. McLauglin for retaliation in violation of the First Amendment. On June 2, 2010, Defendants filed a motion to dismiss pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b) for Plaintiff's failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). Defs.' Mot. Dismiss, Doc. 37. Plaintiff filed his opposition on June 18, 2010. Pl.'s Opp'n, Doc. 41. Defendants filed their reply on June 30, 2010. Defs.' Reply, Doc. 42. The matter is submitted pursuant to Local Rule 230(l).
II. Summary Of Second Amended Complaint
Plaintiff alleges that he was transferred from California Correctional Institution ("CCI") in Tehachapi, California, to Corcoran State Prison ("CSP") in Corcoran, California because Plaintiff had filed prison grievances and a writ of habeas corpus complaining about his conditions of confinement at CCI. Plaintiff contends that Defendants Gonzales and Carrasco denied his appeals, and that Defendants Carrasco and McLauglin recommended the transfer. Plaintiff contends that Defendants had the authority to halt the transfer but failed to do so. Plaintiff alleges retaliation in violation of the First Amendment.
III. Exhaustion Of Administrative Remedies
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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 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 at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
The CDCR has an administrative grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). The process is initiated by submitting a CDC Form 602. Id. § 3084.2(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." Id. § 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. §§ 3084.5, 3084.6(c). In order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always require pursuit of an appeal through the Director's Level of Review. What is required to satisfy exhaustion is a fact specific inquiry, and may be dependent upon prison officials' response to the appeal. See Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of exceptions to exhaustion requirement from other circuits); Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005) ("[E]ntirely pointless exhaustion" not required).
Defendant contends that Plaintiff failed to exhaust administrative remedies. Defs.' Mem. P. & A. Support Mot. Dismiss 3:23-5:11. First, Defendants contend that Plaintiff did not exhaust grievance No. CSP-C-07-3868.*fn1 Id. Defendants contend that Plaintiff's grievance was rejected at the third level of review because Plaintiff failed to attach required documentation. Id. Defendants further contend that Plaintiff did not exhaust his claim of retaliation in this action.
Id. Defendants contend that Plaintiff's grievance makes no claim that Plaintiff's transfer was in retaliation for filing of lawsuits or appeals. Id. Defendants contend that Plaintiff's grievance concerned the actions of the Institutional Gang Investigator ("IGI") and the Law Enforcement and Investigation Unit ("LEIU"), which allegedly manufactured evidence that Plaintiff was involved in gang activity to continue Plaintiff's Security Housing Unit custody. Id. Defendants contend that Plaintiff's grievance thus does not exhaust any retaliation issues regarding a prison transfer. Id. ...