ORDER RE: MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS
Plaintiff Jeffrey E. Walker, a state prison inmate proceeding pro se, initiated this action for claims pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c)(17).
On February 9, 2011, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty- one days. (Docket No. 45.) Defendants*fn1 object to the magistrate judge's recommendation that their motion under Federal Rule of Civil Procedure 12(b) to dismiss for plaintiff's failure to exhaust administrative remedies be denied.*fn2 (Docket No. 49.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court will adopt the findings and recommendations, except to the extent that they rely on section 3084.9(i) (providing for special procedures for staff complaints) of Title 15 of the California Code of Regulations, which was not in effect when plaintiff filed his administrative appeals, and will deny the moving defendants' motion to dismiss for plaintiff's failure to exhaust administrative remedies.
I. Factual and Procedural Background
As pertinent to the motion, plaintiff filed a grievance in November of 2008 for improper searches, retaliation, and deliberate indifference to plaintiff's psychiatric history in 2007 and 2008. Plaintiff alleges that the alleged staff misconduct stemmed from the dismissal of a rules violation report in 2007. (See Lewis Decl. in Supp. of Defs.' Mot. to Dismiss ("Lewis Decl.") Ex. C at 28-29*fn3 (Docket No. 23-4).)
The grievance was categorized as a "staff complaint." At the second level of the inmate appeals process, plaintiff received a response informing him that his administrative appeal was partially granted and that an investigation was conducted, but the investigation found that the allegations were unsubstantiated. (Id. Ex. C at 32-33.) Plaintiff then filed an administrative appeal at the director's level. In March of 2009, before plaintiff received a response at the director's level, plaintiff filed the instant action in this court. Plaintiff received a response at the director's level denying his appeal in May of 2009. (Id. Ex. C at 26-27.)
A prisoner may not bring a § 1983 claim "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The prisoner must satisfy the exhaustion requirement before filing the complaint. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam). A plaintiff need not plead or prove exhaustion; a plaintiff's failure to exhaust is an affirmative defense that must be raised and proved by the defendant. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). A defendant may move to dismiss for a plaintiff's failure to exhaust pursuant to Federal Rule of Civil Procedure Rule 12(b). In deciding the motion, the court may look beyond the pleadings and decide disputed issues of fact. See id. at 1119-20. Failure to exhaust requires dismissal without prejudice. Id. at 1120.
Exhaustion is mandatory regardless of the form of relief sought by the prisoner. See Booth v. Churner, 532 U.S. 731, 739 (2001) (prisoners are obligated to navigate all of a prison's administrative process "regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible"), overruling Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999). However, "a prisoner need not press on to exhaust further levels of review once he has either received all 'available' remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available." Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
Because "there can be no 'absence of exhaustion' unless some relief remains 'available,' a defendant must demonstrate that pertinent relief remained available." Id. at 936-37. Pertinent relief may remain available "at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process." Id. at 937. Evidence that the defendant may use to meet his burden includes "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." Id. The latter category of evidence is relevant because "it informs [the court's] determination of whether relief was, as a practical matter, 'available.'" Id. (emphasis added).
Here, when plaintiff filed his administrative appeals, an inmate in California could file administrative appeals following the procedures found in sections 3084.1 through 3084.7 of Title 15 of the California Code of Regulations.*fn4 Under the regulations in effect at the time, a prisoner "[could] appeal any departmental decision, action, condition, or policy which they [could] demonstrate as having an adverse effect upon [his] welfare." Cal. Code Regs. tit. 15, § 3084.1(a). The regulations set forth four levels of appeal: (1) informal level, in which the prisoner and the staff attempted to resolve the issue; (2) first formal level, usually conducted by the institution's appeals coordinator; (3) second formal level, conducted by the institution's head; (4) and third formal level, conducted by the director of the California Department of Corrections and Rehabilitation ("Department").
Defendants have provided the Department's Administrative Bulletin, issued on August 21, 1998, governing the processing of appeals that allege staff misconduct. (Defs.' Nunc Pro Tunc Req. for Extension of Time to File Ex. A ("Administrative Bulletin") (Docket No. 50).) The Ninth Circuit has described this Bulletin as reflecting a procedure in which the only remedy available for an appeal categorized as a "staff complaint" is an investigation into the alleged staff misconduct. Brown, 422 F.3d at 937-39. The Bulletin provides that "ALL complaints which allege any misconduct by a staff member shall be logged by the appeals coordinator as a Staff Complaint." (Id. (bold in original).)
The Bulletin states that if a staff complaint "warrants a formal . . . investigation," then the second level response "shall note that the appeal was granted or partially granted (depending upon the action requested by the appellant)." (Id. § 2 (emphasis added).) The Bulletin's definition of partially granted suggests that an investigation is the only remedy available to a prisoner alleging staff misconduct: "Whether an appeal directed to the staff complaint procedure is given a 'granted' or 'partially granted' response depends not on whether there remains some possibility of obtaining relief through the appeals process, but on 'the action requested by the appellant.'" Brown, 422 F.3d at 939.
The response at the second level that plaintiff received for his staff complaint is consistent with the Bulletin. (See Lewis Decl. Ex. C at 32.) The response stated that the appeal was partially granted at the second level and that an investigation into the allegations had been conducted. The response informed ...