The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. In his first amended complaint, plaintiff names thirteen defendants, and raises various allegations of retaliation allegedly suffered after plaintiff filed a prison grievance on August 23, 2009, concerning incidents that occurred after August 17, 2009, the date plaintiff reported his cellmate had a pet rodent. (Dkt. No. 12.) Plaintiff alleges that his cell was improperly searched by defendant LaRosa on September 16, 2009, plaintiff was subjected to allegedly retaliatory bed moves, transferred between buildings, given incompatible cellmates, and placed in administrative segregation ("ad seg"), allegedly in retaliation for filing administrative appeals. Plaintiff's motion for sanctions, and defendants' motions to dismiss are now before the court.
On July 5, 2011, plaintiff filed a motion for sanctions against defendants based on their failure to timely file their reply. (Dkt. No. 53.) Plaintiff contends that defendants' reply was filed two weeks late, because it was filed two weeks after plaintiff's opposition was filed, and therefore the reply should be disregarded. On July 8, 2011, defendants filed an opposition, stating that counsel inadvertently calendared the deadline for seven court days rather than seven calendar days, and argues that under the court's May 4, 2011 order, the reply was due on or before June 15, 2011, and therefore the June 17, 2011 reply was only two days late. Defendants contend the reply is helpful to the court, and argue that plaintiff suffered no prejudice by the two day delay because no additional briefing is allowed.
The court has the inherent power to impose sanctions when a party has acted in "bad faith, vexatiously, wantonly, or for oppressive reasons." Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980); Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001). While the court's inherent power extends to all litigation abuses, the litigant must have "engaged in bad faith or willful disobedience of a court's order." Chambers v. NASCO, Inc., 501 U.S. 32, 46-47 (1991); Fink, 239 F.3d at 992. A finding of bad faith is warranted where an attorney or party knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent. Rodriguez v. United States, 2008 WL 4070886, at *3 (9th Cir. 2008).
Plaintiff correctly points out various court orders requiring a reply to be filed in seven days. However, this does not address defendants' claim that the delayed filing was the result of an alleged miscalendaring of seven court days rather than seven calendar days, a distinction which can, depending on the time of year, result in a difference of three days.
Moreover, it is not an unreasonable interpretation of this court's May 4, 2011 order to argue that defendants' reply was due seven days after June 8, 2011, rather than seven days after plaintiff actually filed his opposition on June 3, 2011. This construction renders defendants' reply two days late. In addition, the court notes that there was a four day delay between the June 3, 2011 filed date of plaintiff's opposition, and the date it was actually entered on the court's docket on June 7, 2011. (Dkt. No. 50.) Seven days from June 7, 2011, would render defendants' June 17, 2011 reply only three days late.
This court finds that the two or three day delay in filing the reply was not due to defendants' bad faith, and does not prejudice plaintiff in any way. Such a brief delay does not warrant the imposition of sanctions, or the waiver of defendants' reply. Plaintiff's motion for sanctions is denied. The court will consider defendants' reply filed June 17, 2011.
III. Motions to Dismiss - Exhaustion
On March 8, 2011, defendants Knipp, White, Crosby, Martel, Thomason, Grzebyk, Texeira, Foston, Harrington and Keenan filed a motion to dismiss based on plaintiff's alleged failure to exhaust administrative remedies prior to filing the instant action. (Dkt. No. 38-1.) On April 7, 2011, defendant Wilkins moved to dismiss on the same ground. (Dkt. No. 45.) After receiving an extension of time, on June 3, 2011, plaintiff filed a verified opposition. (Dkt. No. 50.) Defendants filed a reply on June 17, 2011. (Dkt. No. 51.) After careful review of the record, this court finds that the motions to dismiss based on plaintiff's failure to exhaust administrative remedies should be granted.
The following is a chronology of events from plaintiff's amended complaint: On August 17, 2009, plaintiff reported that his cellmate DeLeon had a pet rodent. (Dkt. No. 12 at 6.) Subsequently, plaintiff's cell was searched and the rodent removed. This action angered DeLeon, and plaintiff requested a different cellmate. At some time between August 18, 2009, and September 16, 2009, plaintiff was celled with inmate Daniels. On August 23, 2009, plaintiff submitted an appeal concerning double-celling policy. On September 16, 2009, defendant LaRosa searched plaintiff's cell. On September 18, 2009, plaintiff filed a grievance concerning the allegedly retaliatory September 16, 2009 cell search.
On September 27, 2009, plaintiff was moved to Building 4. (Dkt. No. 12 at 18.) On October 2, 2009, plaintiff agreed to move to Building 2. On October 4, 2009, plaintiff's new cellmate was moved to Building 1, and inmate Lopes was moved in with plaintiff. On October 8, 2009, plaintiff and inmate Lopes were moved to Building 3. On October 16, 2009, plaintiff told a correctional officer, "Get . . . Lopes out of here before I hurt him." (Dkt. No. 12 at 17.) On October 19, 2009, plaintiff was placed in ad seg based on plaintiff's verbal threat against his cellmate. On October 22, 2009, plaintiff attended an Institution Classification Committee ("ICC") hearing regarding plaintiff's retention in ad seg. (Dkt. No. 12 at 18-19.) On November 19, 2009, plaintiff appeared before the ICC for a subsequent administrative placement review hearing. (Dkt. No. 12 at 21.)
Specifically, plaintiff alleges five claims for relief in the August 27, 2010 first amended complaint:
1. Defendants LaRosa, Keenan, Grzebyk, Crosby and White engaged in retaliatory conduct against plaintiff: a cell search, bed and building moves, and assigned plaintiff to incompatible cellmates, advancing no legitimate penological interests, in violation of plaintiff's First and Eighth Amendment rights;
2. Defendants Gamez, White and Harrington knowingly failed to respond to plaintiff's request for help, and permitted their subordinate correctional officers to violate plaintiff's constitutional rights, in violation of plaintiff's First and Eighth Amendment rights;
3. Defendants White and Harrington violated plaintiff's First, Eighth and Fourteenth Amendment rights by placing plaintiff in ad seg;
4. Defendants Harrington, Thomason, Knipp, Texeira, Martel, Wilkins and Foston failed to apply rules, policies and regulations to protect plaintiff's due process rights, in violation of plaintiff's Eighth Amendment rights; and
5. Plaintiff also raises a state law claim alleging defendants failed to follow CDCR rules and regulations.
A. Legal Standard re Exhaustion
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide 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). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734. The fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records).
A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Id., 422 F.3d at 936-37.
As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84.
The State of California provides its prisoners the right to appeal administratively "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) (2010). It also provides them the right to file appeals alleging misconduct by correctional officers and officials. Id. at § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal.Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.
Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court may look beyond the pleadings to determine whether a plaintiff exhausted his administrative remedies. Id. at 1119-20.
B. Analysis re Exhaustion
The instant complaint was filed on June 11, 2010. Therefore, plaintiff was required to exhaust his administrative remedies as to the instant claims on or before June 11, 2010. Booth, 532 U.S. at 741. Defendants provided the declaration of D. Foston, Chief of the Inmate Appeals Branch, who provided a log of any appeals by plaintiff that were "accepted and/or received and screened out at the Directors' level between January 1, 1997, and January 4, 2011." (Dkt. No. 38-6 at 2-7.) Four of the appeals were exhausted through the Director's Level of Review, and only two of those appeals are relevant to the allegations herein.*fn1
Plaintiff filed grievance MCSP-09-01626 on August 23, 2009. (Dkt. No. 38-2 at 5.) Plaintiff complained that his cellmate had a rodent, and sought a new cellmate. (Dkt. No. 38-2 at 5.) Plaintiff reiterated key points concerning double-celling and integrated housing, focusing on language suggesting inmates have an opportunity to express an opinion as to their assigned cellmates. (Dkt. No. 4*fn2 at 5.) Plaintiff requested the following action:
Per Penal Code § 2079, all M.C.S.P. prison officials follow all CDCR directives, policies and procedures governing doublecelling and integrated inmate housing. Issue an updated memorandum consist[ent] with these stated policies and procedures, listed here. NOT retaliate against this writer in any way, e.g., not changing his cell.
(Id.) On the Formal Level of the appeal (Section D), signed September 7, 2009, plaintiff reiterated that he wanted to maintain the action requested, "that is, inmates be permitted to participate in cell[mate] selection." (Id.)*fn3
In the CDC 602 Response, dated September 29, 2009, prison officials note that plaintiff's written appeal "did not address a specific issue." (Dkt. No. 4 at 7.) During the interview, however, plaintiff clarified that "Mule Creek is not following policy and procedure relevant to the integrated housing procedure." (Id.) Plaintiff requested that "all CDCR directives, policies and procedures governing double-celling and integrated inmate housing be followed," that "a memorandum consistent with these policies and procedures be put out to the inmate population," and "that no retaliation be taken against [plaintiff] for this appeal." (Id.) After explaining how housing procedures work, plaintiff's requests that he be allowed to pick who he cells with, and that a memo be issued was denied, and plaintiff's request that he not be retaliated against was granted. (Dkt. No. 7-8.)
On October 10, 2009, plaintiff requested a second level review, stating that the September 29, 2009 response did not address a certain section of the housing code. (Dkt. No. 4 at 4.) Plaintiff added, "Also, see attach[ed] declaration detailing the retaliatory methods used against me by Building One correctional officers." (Id.) Plaintiff's October 10, 2009 declaration addressed various events from August 23, 2009, through October 9, 2009. (Dkt. No. 4 at 11-18.)
In the second level decision, Warden Martel stated:
Although the [plaintiff] has attached an eight page "declaration," outlining what [plaintiff] considers retaliatory bed moves against him, [plaintiff] has provided no evidence to substantiate his allegations that the bed moves he notes are in retaliation to his submission of this appeal. The [plaintiff] is advised per CCR 3084.2 a limit of one continuation page, front and back, may be attached to the appeal to describe the problem and action requested. The [plaintiff] has failed to submit any additional or new information at the Second Level of Review to warrant modification of the First Level decision. Therefore, no relief is warranted at the Second Level.
(Dkt. No. 38-2 at 8.) Plaintiff's appeal was denied. (Id.)
On November 25, 2009, plaintiff sought a Director's Level Review, stating: This appeal is more about the double-celling procedures and/or improper practices ...