The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
This is a prisoner civil rights case, filed under 42 U.S.C. § 1983. Plaintiff Chester Wiseman alleges that his First and Eighth Amendment rights were violated at R.J. Donovan Correctional Facility (where he was previously incarcerated) when he was denied access to the law library and deprived of outdoor exercise. The defendants are prison officials at Donovan.
Pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and (d), Wiseman's complaint was referred to Magistrate Judge Nita Stormes for a report and recommendation ("R&R"). Defendants moved to dismiss the present complaint on May 26, 2010. Judge Stormes issued her R&R on December 8, 2010, recommending that the motion to dismiss be granted. Wiseman filed an objection to the R&R on January 18, 2011.
This Court has jurisdiction to review the R&R pursuant to Rule 72 of the Federal Rules of Civil Procedure. "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). The district judge "must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Because Wiseman is a prisoner and is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). That said, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
The R&R concludes that Wiseman's claims should be dismissed because he has failed to exhaust his administrative remedies as mandated by the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a). Prisoners in California must proceed through several levels of administrative review: (1) informal resolution; (2) formal written appeal on a CDC 602 inmate appeal form; (3) second level appeal to the institution head; 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). On a motion to dismiss, a court can look beyond the pleadings to resolve factual issues regarding exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).
A. Denial of Access to the Courts
Wiseman's claim that he was denied access to the Courts is based on the allegation that prison staff at Donovan refused to provide him with his legal papers, and with library access, after he was placed in an "Administrative Segregation" unit.
Wiseman maintains he made an informal verbal request for his papers, and for library access, when he was initially moved into AdSeg on March 10, 2008. (TAC ¶ 15.) He followed this up with a written request on March 12, 2008, which was never answered. (TAC ¶ 16.) He made another verbal request on March 17, 2008. (TAC ¶ 18.) On April 15, 2008, Wiseman filed a written appeal. (TAC ¶ 21.) On May 5, 2008, he made another verbal request. (TAC ¶ 25.) He filed a second written appeal on May 6, 2008. (TAC ¶ 26.) He made another verbal request on May 9, 2008. (TAC ¶ 27.) He filed yet another inmate appeal on May 12, 2008, which was refused on the ground that an appeal was already pending. (TAC ¶ 28.) On June 13, 2008, Wiseman appealed to Hernandez, alleging that he was still being denied his legal property and meaningful library access and asking Hernandez to take action. (TAC ¶ 30.) Wiseman received a response to his June 13, 2008 letter on July 11, 2008; he was told that his treatment by prison staff was consistent with prison policy. (TAC ¶ 32.) If this is all true, and the Court must accept that it is, then Wiseman arguably worked his way through the first, second, and third levels of review.*fn1
But Wiseman did not appeal to the California Department of Corrections. In fact, he "concedes that his appeals were never decided at the third level." (R&R Obj. at 2.) The declarations of prison officials who track inmate appeals confirms this. (See Foston Decl.¶ 8; Franklin Decl. ¶¶ 11--12.) Instead, Wiseman takes the position that this would have been fruitless because he never received any meaningful response to his first-level appeals:
In this case, Plaintiff "properly filed" his inmate appeals by either giving them directly to the officer involved or sending them to the Inmate Appeals Office. None of the appeals in question have ever received responses. Once Plaintiff placed the appeals in the hands of prison officials, he lost all control over how they were handled. Once they failed to respond to the appeals within time constraints established by prison regulations, Plaintiff had no more remedies available for him to exhaust. (Opp'n Br. at 5.) Wiseman is correct that a failure to exhaust may be excusable when a prisoner's conscientious efforts to exhaust are obstructed by prison staff. See Nunez v. Duncan, 591 F.3d 1217, 1224--26 (9th Cir. 2010); Ngo v. Woodford, 539 F.3d 1108 (9th Cir. 2008). The Court sees no reason, however, to excuse Wiseman's failure to take his grievance to the California Department of Corrections. However unresponsive Wiseman believes the Donovan staff was to his first-level appeals, the fact is that on his own account he submitted a second-level appeal to Warden Hernandez and that appeal was answered.*fn2 (TAC ¶¶ 30, 32.) If that answer was unsatisfying, Wiseman could have, and should have, appealed to the Director of the California Department of Corrections. There is no indication, in his complaint or other briefing, that that third-level appeal would have been pointless to even attempt.*fn ...