The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING DEFENDANTS' MOTION TO DISMISS (ECF Nos. 31, 35, 36) THIRTY-DAY DEADLINE
Plaintiff Kareem Brown is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Following Plaintiff's appeal to the Ninth Circuit, this action is proceeding on the complaint, filed November 18, 2008, against Defendants Cavanaugh and Garcia for retaliation in violation of the First Amendment. Defendants filed a motion to dismiss for failure to exhaust administrative remedies on July 6, 2011. Plaintiff filed an opposition on August 22, 2011, and Defendants filed a reply on August 24, 2011.
Defendant argues that Plaintiff failed to exhaust his claims in compliance with 42 U.S.C. § 1997e(a), subjecting the claims to dismissal. 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). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). All available remedies must be exhausted, not just those remedies that meet federal standards, Woodford, 548 U.S. at 84, nor must they be "plain, speedy, and effective," Booth v. Churner, 532 U.S. 731, 739 (2001). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Id at 741; see Woodford, 548 U.S. at 93.
The California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (West 2009). The process is initiated by submitting a CDCR Form 602. Id. at § 3084.2(a). At the time of the incidents alleged in the complaint, four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. at § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 85-86; McKinney, 311 F.3d at 1199-1201.
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense which defendants have the burden of raising and proving the absence of exhaustion. Lira v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). "In deciding a motion to dismiss for failure to exhaust, a court may look beyond the pleadings and decide disputed issues of fact." Sapp v. Kimbrell, 623 F.3d. 813, 821 (9th Cir. 2010) (quoting Wyatt, 315 F.3d at 1119-20). If the court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice, even where there has been exhaustion while the suit is pending. Lira, 427 F.3d at 1171.
Defendants allege that Plaintiff failed to exhaust administrative remedies prior to filing this action because he did not pursue his appeals against Defendant Kavanaugh after it was screened out and his appeal against Defendant Garcia was not final until two months after this action was filed.
Plaintiff responds that he did not need to exhaust his appeal as to Defendant Garcia because he filed a temporary restraining order with his complaint. Plaintiff does not contest that he failed to exhaust his administrative remedies related to Defendant Kavanaugh. Plaintiff alleges that he was not required to exhaust his administrative remedies related to Defendant Kavanaugh because the appeals were improperly screened out and therefore no administrative remedies were available.
Defendants reply that since Plaintiff admits that he failed to exhaust administrative remedies prior to filing this action the motion to dismiss should be granted and the action dismissed without prejudice.
Plaintiff is incorrect that he is not required to exhaust administrative remedies if he files a temporary restraining order with his complaint. Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner." Booth, 532 U.S. at 741. Congress did not intend "to give prisoners a strong inducement to skip the administrative process simply by limiting their prayers for relief." Id.
Plaintiff cites two cases arguing that he was required to file a complaint in order to obtain a temporary restraining order, however that is not the issue before the Court. The issue is whether Plaintiff can file an action to obtain a temporary restraining order without exhausting his administrative remedies, and he may not. Booth, 532 U.S. at 741; see Burr ...