The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE DENIED AS TO FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND GRANTED AS TO FAILURE TO STATE A CLAIM (DOC. 37)
OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Findings And Recommendations
Plaintiff Ralph Kelly Hawthorne, Jr. ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed July 30, 2007, against Defendants Kathy Mendoza-Power and K. Henry for denial of access to the courts. On March 12, 2009, Defendants filed a motion to dismiss pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure, contending that Plaintiff failed to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). Defs.' Mot. Dismiss, Doc. 37. Defendants also contend in the alternative that Plaintiff fails to state a claim against Defendants. Id. On December 17, 2009, Plaintiff filed his opposition.*fn1 Pl.'s Opp'n, Doc. 64. The matter was submitted pursuant to Local Rule 230(l).
On January 12, 2010, the undersigned issued a Findings and Recommendations ("F&R"), recommending dismissal of the action without prejudice for Plaintiff's failure to exhaust available administrative remedies. F&R, Doc. 71. On March 4, 2010, the United States District Judge assigned to this action adopted the Findings and Recommendations. Order, Doc. 74. Plaintiff filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit on March 15, 2010. Doc. 75. On August 17, 2011, the Ninth Circuit vacated the District Judge's order and remanded to this Court for further proceedings, citing a decision in Harvey v. Jordan, 605 F.3d 681 (9th Cir. 2010), which was decided after the Court had issued its order. Accordingly, the undersigned issues the following F&R.
Plaintiff is a state prisoner at Avenal State Prison ("ASP"), where the alleged events giving rise to this action occurred. Plaintiff alleges that between July 14, 2006 and January 5, 2007, Defendants Warden Mendoza-Powers and librarian K. Henry did not provide Plaintiff with assistance in preparing his legal documents, namely the filing of a habeas corpus petition. Plaintiff alleges that he has dyslexia. Plaintiff alleges that on January 5, 2007, he received insufficient assistance from a law library clerk after Defendant Henry went to her office rather than assist Plaintiff. Plaintiff alleges that he requested that the court appoint him representation because no one at the library could help him file a writ of habeas corpus or do research.
Plaintiff alleges that on July 14, 2006, he gave Defendant Henry a two-page letter with a list of appeals to copy and attach, and defendant Henry was supposed to give the letter to Defendant Mendoza-Powers to mail to the court. Plaintiff alleges that he filed a grievance regarding the letter and that it was partially granted at the first level.
Plaintiff also contends that he did not receive sufficient time in the law library. During the months of October and November 2006, Plaintiff claims that he spoke to Defendant Henry several times, asking for library access two times a week. Plaintiff asserts that this request was denied, and concedes that there were many days that he could not go to the law library due to medical reasons. Plaintiff also contends that between January 26 and February 14, 2007, other inmates were permitted access to the law library once or twice a week, but he was not.
Plaintiff seeks nominal monetary damages. Plaintiff also seeks an injunction requiring Defendants to grant him and others the same access to the law library as other inmates with a court deadline; a law library program with qualified aides and paralegals, and, alternatively, an order transferring him to another institution that will comply with his requests.
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, ...