The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER AND SETTING EVIDENTIARY HEARING FOR INJUNCTION MOTION FOR PRELIMINARY
On Tuesday, November 22, 2011, the Court held a hearing on Plaintiff's "Motion for Emergency Preliminary Injunction and/or Temporairly [sic] Restraining Order" (Dkt. No. 11). The Court construes Plaintiff's motion as both an application for a temporary restraining order and a motion for a preliminary injunction. For the reasons set forth below, the Court DENIES Plaintiff's application for a temporary restraining order, DEFERS RULING on Plaintiff's motion for a preliminary injunction, and ORDERS the parties to appear for an evidentiary hearing on the issue of whether Plaintiff sufficiently has exhausted his available administrative remedies.
On May 12, 2011, Plaintiff Ryan E. Porter, a state prisoner incarcerated at Richard J. Donovan Correctional Facility ("RJD"), filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 claiming that the conditions of his incarceration have violated and continue to violate the Eighth and Fourteenth Amendments.
Plaintiff alleges that in March 2010 he began to find "feces, dirt, razor blades, dead mice, disinfectant, [and] bleach" in the food provided to Sensitive Needs Yard ("SNY" or "protective custody") inmates such as himself. Plaintiff further alleges that this contamination is caused by "general population" inmates, who are responsible for preparing the food provided to the SNY inmates and who have a motive and an opportunity to contaminate the SNY inmates' food. Plaintiff claims that he has suffered "severe [medical] complications" (id. at 8) resulting from ingesting contaminated food beginning in June 2010, for which he has received inadequate medical attention.*fn1 Plaintiff alleges that RJD personnel have retaliated against him on numerous occasions as a result of his efforts to file administrative appeals relating to the conditions of his incarceration. The alleged retaliation includes denial of mail, denial of medical care, denial of food, unwarranted cell searches and confiscation of property, and on one occasion a severe beating by multiple prison guards. Plaintiff alleges that the contamination of SNY food is ongoing, as are his medical problems. Lastly, Plaintiff claims that RJD staff have deliberately obstructed the processing of his administrative appeals.
On September 22, 2011, Plaintiff filed the present motion (Dkt. No. 11), in which he makes two requests: First, Plaintiff requests an "order preventing the 'general population' inmates from making, preparing, handling, and delivering 'protective custody' inmates['] food" (Dkt. No. 11 at 5), and instead "allow[ing] 'protective custody inmates to make and handle and prepare 'protective custody' inmates['] own food or order[ing] the 'culinary free staff' to make, prepare, and handle 'protective custody' inmates['] food at all times" (id. at 13). Second, Plaintiff requests an order preventing "the defendants from denying emergency medical care, . . . retaliation by delaying legal mail, unwarranted cell searches and body [searches], and illegal confiscation of personal property, where the only intent is to harass."
Defendants' arguments in opposition to Plaintiff's motion include their contentions that Plaintiff has failed to exhaust his administrative remedies (Dkt. No. 60 at 3-5) and that Plaintiff has failed to allege he will suffer irreparable injury (id. at 8-9).
The same standards generally apply to temporary restraining orders and preliminary injunctions. Credit Bureau Connection, Inc. v. Pardini, 726 F. Supp. 2d 1107, 1114 (E.D. Cal. 2010). Thus, a plaintiff seeking a temporary restraining order "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).
Pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e et seq., "exhaustion of available administrative remedies is required for any suit challenging prison conditions, not just for suits under [42 U.S.C.] § 1983." Woodford v. Ngo, 548 U.S. 81, 85 (2006) (emphasis added). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules . . . ." Id. at 90. Defendants contend that because Plaintiff has not exhausted his available administrative remedies, he cannot proceed on any of his claims and therefore cannot establish that "he is likely to succeed on the merits."
In the present case, Plaintiff is required to pursue his grievances through the system established by the California Department of Corrections and Rehabilitation before raising those claims in Federal court. See Cal. Code Regs. tit. 15, § 3084 et seq. In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal review, (2) first formal written appeal on a CDC 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 ("Director"). See 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). See id. at 1237-38. Plaintiff conceded at the November 22, 2011 hearing that he has not received a decision from the Director's level of review on any appeals addressing the issues contained in the present motion.
Plaintiff is not required to exhaust administrative remedies under this system if such remedies are "effectively unavailable." Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010). "Failure to exhaust may be excused where [an] inmate takes 'reasonable and appropriate steps to exhaust [a] claim,' but is precluded from doing so by the mistake or misconduct of a prison official." Jacobs v. Woodford, No. 1:08cv00369, 2011 WL 1584429, at *3 (E.D. Cal. Apr. 26, 2011) (citing Nunez, 591 F.3d at 1224-25; Ngo v. Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008)). Specifically, In Sapp v. Kimbrell, 623 F.3d 813 (9th Cir. 2010), the Ninth Circuit held that "improper screening of an inmate's administrative grievances renders administrative remedies 'effectively unavailable' such that exhaustion is not required under the PLRA." Id. at 823. To show the appeal process is "unavailable," the inmate must establish (1) that he actually filed a grievance or grievances that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court, and (2) that prison officials screened his grievance or grievances for reasons inconsistent with or unsupported by applicable regulations. Id. at 823-24.
At this stage in the proceedings, Plaintiff has failed to introduce sufficient evidence to establish that he is likely to succeed in proving that administrative remedies were "effectively unavailable" to him. The Court therefore ...