The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding with counsel. He has two claims. The first arises under 42 U.S.C. § 1983 and the Free Exercise Clause of the First Amendment. The second arises under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Defendants Martel, Long, Sauceda, Lackner, Barroga and Childress (defendants) are current or former employees of the California Department of Corrections and Rehabilitation (CDCR) at Mule Creek State Prison (Mule Creek). They have filed a motion to dismiss for failure to exhaust administrative remedies.*fn1
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, or any other federal law . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). CDCR 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.
Administrative remedies must be "properly" exhausted which means use of all steps put forward by the agency. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Also, "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.
The specificity required in grievances is dictated by the terms of the prison's own grievance process. Jones v. Bock, 549 U.S. 199, 218 (2007). Absent prison regulations to the contrary "'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) quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Generally speaking, grievances need not include theories of legal relief or legal terminology and need not "contain every fact necessary to prove each element of an eventual legal claim." Id. There is no requirement that all defendants named in subsequent litigation be named in a prison grievance. Bock, 549 U.S. at 217.
Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119.
In his complaint, plaintiff alleges defendants denied him the ability to practice Wicca*fn2 in several respects while incarcerated at Mule Creek. Defendants assert plaintiff exhausted administrative remedies with respect to two separate grievances which concern his religious practice:
In this grievance, which was submitted on May 29, 2008, plaintiff complained that Pastor Barham (who is not a defendant is this action), and defendant Long did not allow him to purchase certain items used for exercise of Wicca. The precise nature of the items is not clear but some, if not all of the items were available at plaintiff's prison for group use under the terms of something called the "Technical Reference Manual." Plaintiff indicates he required the items for personal use as Wicca is mostly a "solo faith." Further, plaintiff has health concerns, including the fact that he takes heat sensitive medication, which require that he practice his religion in his cell and not outside with the other Wiccans. A "Director's Level Decision" was issued with respect to this grievance on November 17, 2008.
Here, in a grievance submitted May 15, 2009, plaintiff alleges, among other things, that on April 27, 2009, defendants Sauceda, Childress and an unidentified correctional officer searched plaintiff's cell and confiscated items plaintiff used to exercise his religion including three "decorative ceremonial wands," two chalices and a crystal. Plaintiff claims this was done in retaliation for plaintiff filing complaints against prison staff. A "Director's Level Decision" was issued with respect to this grievance on December 17, 2009.
Plaintiff agrees that the two grievances identified above are the only grievances pertaining to claims presented in plaintiff's amended complaint which were addressed at the "Director's Level." Near the end of plaintiff's opposition to defendants' motion to dismiss, counsel for plaintiff indicates "[i]t has long been plaintiff's assertion . . . that he was prevented by prison staff from pursuing grievances on [other claims appearing in plaintiff's amended complaint]." Counsel for plaintiff presents no evidence in support of this. Counsel indicates he wrote plaintiff attempting to obtain such evidence, but plaintiff has not provided any. Counsel speculates this could be because plaintiff was not provided with writing materials as plaintiff has complained about that in the past. The court might pay more mind to counsel's assertions if counsel had exhausted other avenues of communication with plaintiff such as attempting to phone plaintiff or visit him in person. As it stands, counsel's assertions are speculative.
Turning to the allegations in plaintiff's amended complaint, it is clear plaintiff has exhausted administrative remedies with ...