The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff Dennis Walker is a state prisoner at the California Medical Facility ("CMF") in Vacaville, California, proceeding without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff's First Amended Complaint filed June 3, 2010. (Dkt. No. 6.) Pending is defendants' motion to dismiss this action for failure to exhaust administrative remedies. For the following reasons, the court recommends that defendants' motion be granted.
Plaintiff challenges application of the inmate "Integrated Housing Program" ("IHP"), implemented in 2008 by the California Department of Corrections and Rehabilitation ("CDCR"), on the ground that it forces racial integration pursuant to prisoner cell assignments.*fn1
See Cal. Code. Regs., art. 47, §§ 54055.1 et seq. The named defendants are CDCR Secretary Matthew Cate, and CMF Warden Kathleen Dickinson. Plaintiff states that he is an Aryan Christian/Odinist, ethnically white without gang affiliation, who may be injured if he is celled with an inmate of another race and/or religion. Plaintiff alleges that when he refused a cell-integration order on October 7, 2008, with a "non-Aryan Muslim," he was found guilty pursuant to a CDC-115 disciplinary rules violation report, lost good time credits, and was placed in administrative segregation. Although plaintiff thereafter obtained a classification excluding him from an integrated cell assignment, it was rescinded. Plaintiff contends that the application of the IHP violates plaintiff's right to the free exercise of his religion protected by the First Amendment of the United States Constitution, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), his Eighth Amendment right against cruel and unusual punishment, his Fourteenth Amendment rights to equal protection and due process, and his Fifth Amendment right to due process. (FAC at 5-6).*fn2 Plaintiff seeks damages, as well as declaratory and injunctive relief.
A. Failure to State a Cognizable Claim
The Federal Rules of Civil Procedure authorize motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson, 551 U.S. 89 (internal citations omitted).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
B. Administrative Exhaustion
The Prison Litigation Reform Act ("PLRA") provides that, "[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 must exhaust their administrative remedies regardless of the relief they seek. Booth v. Churner, 532 U.S. 731, 741 (2001). Such exhaustion requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules and deadlines, Woodford v. Ngo, 548 U.S. 81, 85-86 (2006) (summary of administrative review process in California prisons), which in California requires that a prisoner pursue his administrative grievance through the Third (Director) Level Review. Id. at 85; Bovarie v. Giurbino, 421 F. Supp. 2d 1309, 1314-15 (S.D. 2006).
The PLRA requires that a prisoner's administrative remedies be exhausted prior to filing suit. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) (per curiam). While a plaintiff may add newly exhausted and related claims to an existing action, see Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010) (authorizing amended complaint containing newly exhausted claims based on related conduct that occurred after the filing of the original complaint), "a prisoner must exhaust his administrative remedies for the claims contained within his complaint before that complaint is tendered to the district court," id. at 1004, citing McKinney, supra, 311 F.3d at 1199, and Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006).
The exhaustion requirement applies to all section 1983 claims regardless whether the prisoner files his claim in state or federal court. Johnson v. Louisiana ex rel. Louisiana Dept. of Public Safety and Corrections, 468 F.3d 278 (5th Cir. 2006). However, the exhaustion requirement is not jurisdictional, but an affirmative defense that may be raised by a defendant in a non-enumerated Rule 12(b) motion. See Jones v. Bock, 549 U.S. 199, 216 (2007) ("inmates are not required to specially plead or demonstrate exhaustion in their complaints"); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119 n.13, and related text.
"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust-a procedure closely analogous to summary judgment-then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120 n.14. However, when the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) ...