The opinion of the court was delivered by: Kendall J. Newman United States Agistrate Judge
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. On March 24, 2011, defendants filed a motion to dismiss based on plaintiff's alleged failure to exhaust administrative remedies prior to filing this action as to plaintiff's claims against defendant Durfey, Schwarzenegger, and Cate. (Dkt. No. 38.) Defendants also allege that plaintiff failed to comply with the California Tort Claims Act, and that plaintiff's factual allegations in claims three through seven fail to state cognizable civil rights claims. On April 25, 2011, plaintiff filed an unverified opposition, and on May 23, 2011, defendants filed a reply. (Dkt. Nos. 41, 44.) After review of the record, this court finds that the motion to dismiss should be partially granted, and plaintiff's amended complaint should be dismissed with leave to amend.
II. Motion to Dismiss Based on Exhaustion
Defendants move to dismiss plaintiff's claims against defendants Durfey, Schwarzenegger, and Cate, based on plaintiff's alleged failure to exhaust administrative remedies prior to filing the instant action.
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. Brown, 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
Plaintiff contends that his failure to protect claim against
defendant Durfey was exhausted by appeal CSP-S-08-03370,*fn1
in which plaintiff's only statement about defendant Durfey
is: "During the escort, C/O Rosario guided petitioner securely by the
elbow as Sergeant Easterling and Durfy followed." (Dkt. No. 38-3 at
4.) In the "action requested" section, plaintiff states:
C/O Rosario, after reviewing the Yard videotape that will clearly show inmate Mitchell made no resistance that required the "excessive force" he used and after interviewing witnesses should be charged with felony assault and excessive force.
(Id.) The appeal was treated as a staff complaint against defendant Rosario, and denied at the third level of review. (Dkt. No. 38-3 at 3.)
Defendants contend that this grievance is insufficient to put prison officials on notice that defendant Durfey allegedly failed to protect plaintiff or that plaintiff maintained that defendant Durfey acted, or failed to act, in a way plaintiff believed violated plaintiff's rights. Plaintiff argues that defendant Durfey knew before plaintiff was handcuffed that plaintiff was to be taken to administrative segregation ("ad seg"), yet failed to intervene or question why plaintiff was not being escorted to ad seg, and was present while plaintiff was subjected to force. (Dkt. No. 41 at 6.)
For purposes of the PLRA's exhaustion requirement, "a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (internal quotation marks omitted).
A grievance need not include legal terminology or legal theories unless they are in some way needed to prove notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation.
Id. Ultimately, a grievance must "provide enough information . . . to allow prison officials to take appropriate responsive measures." Id., 557 F.3d at 1121 (internal quotation marks omitted). Therefore, a prisoner is not required to identify each named defendant in his administrative appeals. Irvin v. Zamora, 161 F. Supp. 2d 1125, 1135 (S.D. Cal. 2001) ("As long as the basic purposes of exhaustion are fulfilled, there does not appear to be any reason to require a prisoner plaintiff to present fully developed legal and factual claims at the administrative level."). Department regulations require the prisoner to "describe the problem and the action requested." Cal. Code Regs. tit. 15, § 30842.2(a).
Like the prisoner in El-Shaddai v. Wheeler, 2008 WL 410711 (E.D. Cal. Feb. 12, 2008), plaintiff did not suggest that other guards joined in the excessive force, or that any guard stood by while plaintiff was subjected to force. A liberal reading of plaintiff's grievance demonstrates plaintiff was appealing defendant Rosario's use of force. Plaintiff does not state defendant Durfey witnessed the use of force or had an opportunity to stop the use of force but failed to do so. The facts provided by plaintiff in grievance CSP-S-08-03370 were not sufficient to put prison officials on notice that plaintiff had a problem with defendant Durfey, or that defendant Durfey acted wrongfully or failed to act in some way. In any event, the appeal was treated as a staff complaint against defendant Rosario, and no claim as to Durfey's role in the incident was exhausted to the third level of review or in a staff complaint. For all of these reasons, plaintiff's claim against defendant Durfey is unexhausted and should be dismissed without prejudice.
2. Defendants Schwarzenegger and Cate
Defendants contend that none of the appeals accepted for review alleged wrongdoing on the part of defendants Schwarzenegger and Cate. Moreover, plaintiff failed to articulate in any administrative appeal plaintiff's claims concerning "underground policies" that permitted overcrowding, forced prisoners to cell with incompatible inmates, or negligently supervised staff. In his opposition, plaintiff concedes he did not exhaust these claims, arguing these claims could not be exhausted because there are no superior officials over defendants Schwarzenegger and Cate, so an administrative appeal would be "futile or moot." (Dkt. No. 41 at 6.)
Plaintiff's argument is unavailing. The PLRA is clear -- an inmate may not file suit in federal court until he exhausts all available administrative remedies. 42 U.S.C. § 1997e(a). Exhaustion is mandatory. See Booth, 532 U.S. at 739, 741. Booth confirmed that "Congress meant to require procedural exhaustion regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible. Id. at 739. "[S]aying that a party may not sue in federal court until the party first pursues all available avenues of administrative review necessarily means that, if the party never pursues all available avenues of administrative review, the person will never be able to sue in federal court." Woodford, 548 U.S. at 100 (emphasis in original). Accordingly, plaintiff's claims against defendants Schwarzenegger and Cate must be dismissed without prejudice based on plaintiff's failure to exhaust administrative remedies.
3. Conclusion re Exhaustion
For all of the above reasons, plaintiff's claims against defendants Durfey, Schwarzenegger and Cate should be dismissed without prejudice.
In claims five and six, plaintiff alleges that defendants Rosario, Easterling, Durfey, and Garcia violated the California State Tort Act by allegedly inflicting intentional bodily injury and emotional distress. Defendants provided certified documents from the California Victim Compensation & Government Claims Board for plaintiff's claim G579737. (Dkt. No. 38-15 at 2-42.) Claim G579737 was rejected on February 26, 2009. (Dkt. No. 38-15 at 3.)
Defendants contend that plaintiff's state tort claim failed to include plaintiff's claim against defendant Durfey, and plaintiff failed to timely file the instant action within six months after the February 26, 2009 rejection of plaintiff's state tort claims against defendants Easterling and Rosario. Finally, defendants contend that plaintiff's March 8, 2009 attempt to amend the state tort claim to include plaintiff's claim against defendant Durfey, also fails because plaintiff submitted the amendment after claim G579737 was rejected, and after the six month limitations period for filing a claim expired, and plaintiff failed to seek leave to present a late claim. (Dkt. No. 38-1 at 19.) In opposition, plaintiff appears to argue he should be entitled to tolling while he exhausted his administrative remedies under the PLRA, citing Wright v. State of California, 122 Cal. App. 4th 659, 19 Cal. Rptr. 3d 92 (2004). (Dkt. No. 41 at 7.)
Before a state law claim can be brought in state or federal court, the California Tort Claims Act requires that a claim against a public entity or its employees be presented to the California Victim Compensation and Government Claims Board ("Board"), formerly known as the State Board of Control, no more than six months after the cause of action accrues. Cal. Govt. Code §§ 905, 911.2, 945.4, 950.2; Hernandez v. McClanahan, 996 F.Supp. 975, 977 (N. D. Cal. 1998) (failure to present timely California tort claims bars plaintiff from bringing them in federal suit). If the claim is rejected, the claimant thereafter has six months to file a lawsuit. Cal. Govt. Code § 945.6. While the ...