The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Plaintiff is a California prisoner proceeding without counsel with an action for violation of civil rights under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), the parties have consented to all proceedings in this matter being held before a United States Magistrate Judge. This action is proceeding on plaintiff's claims arising under the Eighth Amendment against defendants Grady and Ash (defendants). See October 9, 2009 Order. Defendants have filed a motion to dismiss in which they assert this action should be dismissed for plaintiff's failure to exhaust administrative remedies.
The court notes that on October 21, 2010, defendants filed a request for an extension of time within which to file a reply brief regarding their motion to dismiss. Good cause appearing, the reply brief filed on November 15, 2010 is considered timely.
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Id.
The exhaustion requirement is rooted in the Prison Litigation Reform Act, which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). California Department of Corrections (CDC) regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a prisoner has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All steps must be completed before a civil rights action is filed, unless a plaintiff demonstrates a step is unavailable to him; exhaustion during the pendency of the litigation generally will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119.
In his complaint, plaintiff alleges he was pepper-sprayed by both defendants during a prison riot which occurred on August 16, 2008 at California State Prison, Sacramento (CSPS). Plaintiff indicates that when he was pepper-sprayed, both defendants knew plaintiff is asthmatic and that plaintiff was not an aggressor in the riot. Furthermore, plaintiff alleges that after he was pepper-sprayed, defendants placed him in a holding cage without cleaning off the pepper spray from his body and clothes.
Plaintiff asserts that he submitted grievances concerning the events of August 16, 2008, but he never received a response. SeeOpp'n. However, plaintiff fails to submit any admissible evidence in support of his assertion to this effect: there are no affidavits signed under penalty of perjury, see Fed. R. Evid. 603, nor are any of his exhibits properly authenticated as required under Rule 901 of the Federal Rules of Evidence.*fn1
In contrast to the plaintiff's submissions, the defendants submit
detailed admissible evidence to support their contention that
plaintiff never filed a grievance. First, defendants submit the
declaration of CSPS Appeals Coordinator A. Pereira. In the
declaration, Pereira indicates that even when an inmate's grievance is
screened out before resolution at the first level, the grievance is
returned to the inmate who filed the grievance with an explanation as
to why the grievance was screened out, and with a stamp on the
grievance itself indicating the date that it was originally received
by the Appeals Coordinator. While plaintiff has provided the court a
completed grievance form dated August 16, 2008, and plaintiff
indicates that it was submitted on August 16, 2008, there is no stamp
on it. From this, the court concludes that even if the plaintiff did
in fact submit it, there is no indication that the grievance was
received by any person authorized to address the grievance.*fn2
Additionally, Pereira indicates that even when grievances are
screened out, a record is kept of the date the grievance was submitted
and the subject matter. Pereira indicates there is no record that
plaintiff submitted a grievance on August 16, 2008, nor is there any
record plaintiff submitted a grievance on or after that day concerning \\\\ \\\\
the issues presented in plaintiff's complaint.*fn3
Also, defendants provide the affidavit of A. Slusser, Executive Assistant to the Warden at CSPS. Attached to the affidavit are copies of correspondence sent by plaintiff to the Warden on September 18, 2008 and October 27, 2008. In the September 18 "Inmate Request For Interview" plaintiff inquires about the status of a previous request to be transferred to "Mule Creek State Prison EOP [enhanced outpatient] SNY [sensitive needs yard]." Reply, Ex. B. In the October 27 "Request For Interview," plaintiff expresses concern about a potential transfer to Kern Valley State Prison. Reply, Ex. C. The court finds this evidence noteworthy for two reasons. First, while the "Request For Interview" letters were submitted to the Warden close in time to the events alleged in plaintiff's complaint and the dates plaintiff claims to have submitted grievances concerning those events, no mention is made in the "Requests . . ." as to what occurred on August 16, 2008 or the failure of staff to respond to grievances concerning those events. Second, the fact that A. Slusser was able to retrieve these documents suggests that correspondence submitted from inmates to staff at CSPS is retained and filed so that it may be retrieved, if necessary, at a later date further supports the proposition that if plaintiff actually submitted a grievance regarding the events of August 16, 2008, there would be an obtainable record reflecting that.
For all the foregoing reasons, defendants have met their burden to establish that plaintiff has failed to complete the prisoner grievance process with respect to his remaining claims. Therefore, the court will order that defendants' motion to dismiss be granted and this case be closed.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants October 21, 2010, request for an extension of time is granted;
2. The reply brief filed November 15, 2010, is ...