The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
(ECF Nos. 26, 32, 34, 36)
Plaintiff Darryl Wakefield ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1 (Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA")). This action is proceeding on the first amended complaint, filed August 11, 2009, against Defendant Indermill for violations of the First Amendment and RLUIPA. (ECF No. 14.) Defendant filed a motion to dismiss on October 18, 2010, and Plaintiff filed a opposition on January 24, 2011. (ECF Nos. 26, 32.) Defendant filed a reply on February 1, 2011, and Plaintiff filed a sur-reply on February 22, 2011. (ECF Nos. 34, 36.)
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). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006).
All available remedies must be exhausted, not just those remedies that meet federal standards, Woodford, 548 U.S. at 84, nor must they be "plain, speedy, and effective," Booth v. Churner, 532 U.S. 731, 739 (2001). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Id at 741; see Woodford, 548 U.S. at 93.
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084, et seq. "Any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(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." Cal. Code Regs. tit 15, § 3084.5.
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense which defendants have the burden of raising and proving the absence of exhaustion. Lira
v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). 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 v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). "In deciding a motion to dismiss for failure to exhaust, a court may look beyond the pleadings and decide disputed issues of fact." Sapp v. Kimbrell, 623 F.3d. 813, 821 (9th Cir. 2010) (quoting Wyatt, 315 F.3d at 1119-20). If the court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice, even where there has been exhaustion while the suit is pending. Lira, 427 F.3d at 1171.
Plaintiff's complaint alleges that he is a Seventh Day Adventist and receiving holy communion is essential to his religious practice. (First Amend. Compl. 3-4, ECF No. 14.) On September 3 and 28, 2008, and November 23, 2008, Plaintiff attempted to contact Defendant
Indermill to request that Defendant provide him with communion. Defendant Indermill never responded. Plaintiff submitted an Inmate Appeal Form to Defendant Indermill on December 1, 2008. Defendant Indermill did not respond. (Id. at 6.) Plaintiff submitted an inmate request for interview requesting the number that was assigned to the appeal. He received a response that the inmate appeal form that was sent to the Chaplain on December 1, 2008, was assigned number 4B2-08-12-008. (Id. at 14.)
Since Plaintiff did not receive a response to his inmate appeal, he sent a letter to Defendant Indermill's attorney requesting that Defendant visit him. (Id.) On April 30, 2009, Defendant Indermill visited Plaintiff while he was in the prison Acute Care Hospital and told Plaintiff that he was informed by his attorney that Plaintiff wanted to see him. (Id. at 6-7.) Plaintiff told Defendant Indermill that he had been trying to contact him to receive holy communion. Defendant Indermill replied that he did not have time to deal with Plaintiff's Seventh Day Adventist needs. Defendant Indermill also told Plaintiff to stop sending him requests for service because he was not going to answer them or provide the services requested. (Id. at 7.) On July 14, 2009, Defendant Indermill was visiting another inmate and Plaintiff again asked Defendant to provide communion to Plaintiff. Defendant replied that ...