FINDINGS AND RECOMMENDATION
RECOMMENDING DEFENDANT'S MOTION TO DISMISS BE GRANTED
(ECF No. 27)
OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Eldred Nicholson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pending before this Court is a Motion to Dismiss filed by Defendant M. Lomeli. (ECF No. 27.) Plaintiff filed an Opposition on June 28, 2011, and Defendant replied two days later. (ECF Nos. 29 & 30.)
This action proceeds on Plaintiff's Complaint filed June 30, 2009. (ECF No. 1.) On January 14, 2011, this Court screened Plaintiff's Complaint finding that it stated a cognizable claim for relief against Defendant Lomeli for excessive use of force in violation of the Eighth Amendment. (ECF No. 19.)
In his Motion, Defendant Lomeli argues that Plaintiff did not exhaust his available administrative remedies before filing this action. Defendant Lomeli highlights the fact that Plaintiff filed one grievance/appeal after the incident on November 8, 2007. However, this appeal failed to put the prison on notice of the events or persons about which he was complaining. On November 21, 2007, Plaintiff submitted a grievance complaining that he was improperly kept in the security housing unit ("SHU"), that his jaw was broken, and that the SHU placement was retaliatory. (ECF No. 1, pp. 23-25; Pl.'s Compl. Ex. A.) As relief, Plaintiff requested that "all paperwork [be] thoroughly investigated" and then provided to him. (Id. at 23.) This appeal was returned to Plaintiff after being rejected by the Appeals Coordinator because it was incomplete. The rejection informed Plaintiff why it was rejected, what information needed to be provided, and reminded Plaintiff of the time constraints. (Id. at 21.) Plaintiff did not resubmit the grievance for more than six months. (Id. at 22.)
Based on this grievance, Defendant argues that not only did Plaintiff fail to complete the grievance process, even if he had, this grievance did not alert prison officials to the nature of the wrong for which Plaintiff sought redress.
In his Opposition, Plaintiff argues that he attempted to exhaust his administrative remedies, but could not. Plaintiff states that he filed his first appeal regarding this incident on November 21, 2007. This appeal was returned to him by the appeals coordinator and asked for supporting documents. Plaintiff explained to the appeals coordinator that he was trying to get the supporting documents, but the hospital limited what he could do. Plaintiff requested interviews, wrote letters, filed 602 appeals forms, and requested the documents from ICC. Plaintiff did not receive the requested documents until June 23, 2008. Plaintiff states that before that he repeatedly resubmitted the November 21, 2007 appeal, which the appeals coordinator would not process. Plaintiff filed a second grievance on August 7, 2008, which was immediately rejected.
Plaintiff states that, after numerous attempts, he was blocked from filing a staff complaint. Plaintiff appears to be arguing that he should be excused from the exhaustion requirement because of the delay or mishandling of his original appeal.
In his Reply, Defendant states that he does not dispute that Plaintiff's November 21, 2007 grievance was timely filed. Defendant argues that the grievance did not put prison officials on notice of Defendant's alleged misconduct which is the basis for this action.
"The Prison Litigation Reform Act [("PLRA")] requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997e(a)); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (quoting Porter v. Nussle, 534 U.S. 516, 525 n.4 (2002)) (The PLRA "creates 'a general rule of exhaustion' for prisoner civil rights cases."). "'[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.'" Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002) (quoting Porter, 534 U.S. at 532); accord Roles v. Maddox, 439 F.3d 1016, 1018 (9th Cir.), cert. denied, 549 U.S. 905 (2006). The PLRA's "exhaustion requirement is mandatory." McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam); accord Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court."); see also Panaro v. City of North Las Vegas, 432 F.3d 949, 954 (9th Cir. 2005) (The PLRA "represents a Congressional judgment that the federal courts may not consider a prisoner's civil rights claim when a remedy was not sought first in an available administrative grievance procedure."). Even if the prisoner seeks monetary or other relief that is unavailable through the grievance system in question, the prisoner must still first exhaust all available administrative remedies. See Booth v. Churner, 532 U.S. 731, 741 (2001) ("[W]e think that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.").
While the PLRA requires "proper" exhaustion of available administrative remedies, Woodford v. Ngo, 548 U.S. 81, 93 (2006), it does not define the boundaries of proper exhaustion. See Jones, 549 U.S. at 218. Rather, "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford, 548 U.S. at 90. "The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones, 549 U.S. at 218; see, e.g., Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009, as amended June 5, 2009) (per curiam) ("The California prison system's requirements define the boundaries of proper exhaustion.") (internal quotation marks and citation omitted). Absent a prison grievance procedure mandating the naming of each individual involved, a prisoner need not identify all of the defendants later named in a lawsuit during the administrative grievance process. Jones, 549 U.S. at 218.
The PLRA's exhaustion requirement is not jurisdictional; rather, it creates an affirmative defense that a defendant may raise in an unenumerated Rule 12(b) motion. See Jones, 549 U.S. at 213-14; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 540 U.S. 810 (2003). The defendant bears the burden of raising and proving the absence of exhaustion. Wyatt, 315 F.3d at 1119. Specifically, the defendant must show that some administrative relief remains available to the plaintiff "whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process." Brown, 422 F.3d at 936-37. In deciding a motion to dismiss for failure to exhaust, a court may "look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119-20. When a prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120. However, dismissal of the entire complaint is not required when a prisoner has exhausted some, but not all, of the claims included in the complaint. See Jones, 549 U.S. at 223-24.
California provides its inmates and parolees the right to appeal administratively the alleged misconduct of correctional officers and "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a), (e). In order to exhaust administrative remedies within this system, a prisoner normally must proceed through four levels: (1) initiation of informal resolution through submission of a CDC form describing the problem and the action requested; (2) first level formal written appeal to the prison's appeals coordinator; (3) second level formal appeal to the institution's warden or designee; and (4) third level formal appeal to the CDCR Director ("Director's Level"). Id. § 3084.5; see Woodford, 548 U.S. at 90-91 (California prisoners are required to use the process established by Cal. Code Regs., tit. 15 §§ 3084.1, ...