The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANTS' MOTIONS TO DISMISS BE GRANTED IN PART AND DENIED IN PART
OBJECTIONS, IF ANY, DUE WITHIN/ TWENTY-ONE DAYS
Plaintiff Jaymar Dodds ("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 against Defendants E. Lascano, J. Hamlin, and B. Williams. On November 15, 2010 and April 6, 2011, Defendants filed motions to dismiss for Plaintiff's failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997a(e). Def. Williams's Mot. Dismiss, Doc. 30; Defs. Lascano and Hamlin's Mot. Dismiss, Doc. 36. Plaintiff filed an opposition on May 13, 2011.*fn1 Pl.'s Opp'n Doc. 40. Defendants filed a reply on May 20, 2011. Defs.' Reply, Doc. 41. The matter is submitted pursuant to Local Rule 230(l).
The events giving rise to this action allegedly occurred at Kern Valley State Prison ("KVSP"). Plaintiff alleges that on November 1, 2007, a cell search was conducted at KVSP. Plaintiff alleges that Rivera and defendants Lascano and Williams ordered Plaintiff from his cell. Plaintiff alleges that he was drugged/dragged in front of the unit counselor's office, and ordered strip searched while others were present. Plaintiff alleges that defendant Lascano authorized Rivera and defendant Williams to confiscate Plaintiff's bed linens, clothing, legal property, and personal property. Plaintiff alleges that he was subsequently informed by prison staff that his property was under investigation and would not be immediately returned. Plaintiff contends that he was left in his cell for five or six days without a toothbrush, toothpaste, deodorant, soap or his personal property. Plaintiff contends that he suffered from cold temperatures without state-issued clothing and bed linens. Plaintiff alleges that he informed defendants Lascano and Williams of the problems but they did nothing to assist him. Plaintiff states that he filed a 602 grievance and a citizen's complaint concerning his treatment. Plaintiff alleges that defendants Lascano and Hamlin retaliated against him by placing him in the "hole" for four months. Plaintiff stated cognizable claims against Defendant Williams and Lascano for deliberate indifference in violation of the Eighth Amendment regarding his conditions of confinement, and against Lascano and Hamlin for 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 California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). At the time the grievance was filed, the process was initiated by submitting a CDC Form 602. Id. § 3084.2(a). Four levels of appeal were 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).
Defendants contend that Plaintiff did not exhaust administrative remedies. Defendants contend that none of Plaintiff's inmate appeals notified prison officials of the problem and the action requested, or were properly exhausted. Defendants submit as exhibits in support ...