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, in this civil rights action filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983; the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc-1 et seq.; and various provisions of the California Penal Code. Presently pending is defendant's motion to dismiss plaintiff's complaint, on the ground that plaintiff failed to exhaust his administrative remedies. Plaintiff filed an opposition to defendant's motion, and defendant filed a reply. For the following reasons, the court recommends that defendant's motion to dismiss be granted.
One preliminary matter must be addressed. In addition to filing an opposition, plaintiff filed a motion requesting that this court direct defendant to file an answer to the complaint. Plaintiff's motion misapprehends the Federal Rules of Civil Procedure. Defendant was directed to file a reply to the complaint pursuant to the applicable provisions of Rule 12, Federal Rules of Civil Procedure, which authorizes the filing of an answer or a dispositive motion. A motion to dismiss is a proper response to the complaint; an answer would be required only if the motion to dismiss was denied. Accordingly, plaintiff's motion is denied.
Pursuant to his complaint filed July 27, 2010, plaintiff alleges the denial of his right to freely exercise his religion in specified ways. Plaintiff does not seek damages, but declaratory and injunctive relief authorizing: (1) plaintiff's conversion to Judaism through the Mikvah ritual (including ritual submersion in water); (2) plaintiff's participation in the Kiddush ritual every Friday night and Saturday morning (requiring wine or grape juice); (3) plaintiff's ability to "buy and sell in good faith" as prescribed by the Talmud; and (4) plaintiff's marriage and consummation of the marriage through participation in the Family Visit Program.*fn1 Plaintiff alleged in his complaint that he had exhausted all administrative remedies. Defendant moves to dismiss the complaint on the ground that none of plaintiff's claims were administratively exhausted.
The Prison Litigation Reform Act ("PLRA") provides 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). Pursuant to this rule, prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001). Such exhaustion requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006). The exhaustion requirement is not jurisdictional but an affirmative defense that may be raised by a defendant in a non-enumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119.
"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust -- a procedure closely analogous to summary judgment -- then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120, n.14. However, when the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) ("mixed" complaints may proceed on exhausted claims). Thus, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
Defendant contends that plaintiff fully exhausted only two administrative grievances (Log No. HDSP-01-01559, and Log No. SAC-09-01715), and that neither grievance addressed plaintiff's instant claims for religious accommodation. Plaintiff does not refute this conclusion, and the court's review of these grievances supports defendant's construction. (See Dkt. No. 18 at 35-49 (Dft. Exh. D at 8-22), Log No. SAC-09-01715 (wherein plaintiff claimed that prison officials mishandled his property)); and Dkt. No. 18 at 70-78 (Dft. Exh. D at 43-51), Log No. HDSP-01-01559 (wherein plaintiff challenged a prison disciplinary finding)).)
Defendant further contends that plaintiff has filed only two grievances challenging the denial of his requests for religious accommodation (Log No. SAC 09-01349, and Log No. 10- 00322), and that neither grievance was administratively exhausted. Plaintiff does not refute defendant's position regarding the most recent of these grievances, which is supported by the court's review. (See Dkt. No. 18 at 50-56 (Dft. Exh. D at 23-29), Log No. SAC 10-00322 (wherein plaintiff "request[ed] that a Mikva be built on institution grounds," not pursued after it was denied at the Second Level Review).)
However, plaintiff contends that the remaining grievance (Log No. SAC 09-01349) was fully exhausted because it was partially granted at the Second Level Review, and plaintiff was satisfied with the result. (See Dkt. No. 18 at 31-4 (Dft. Exh. D at 28-31).) Plaintiff asserts, based on the holding in Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010), that the exhaustion requirement was satisfied by plaintiff's sense of "satisfaction" with the relief granted pursuant to his Second Level Review.
In the subject grievance (Log No. SAC 09-01349), plaintiff initially requested that he be permitted to convert to Judaism in a traditional ceremony, which would require the provision of necessary "equipment and Rabbis." ...