FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANT'S MOTION TO DISMISS AND DISMISSING ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Doc. 32 OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
On June 15, 2007, Plaintiff Emelito Exmundo ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action in California Superior Court, County of Kings, pursuant to 42 U.S.C. § 1983. Doc. 1. On November 21, 2007, Defendants removed this action to Federal Court. Id. On January 14, 2011, Plaintiff filed a second amended complaint. Doc. 26. On May 2, 2011, this Court issued an order requiring Plaintiff to either file an amended complaint or notify the Court of willingness to proceed on his a cognizable claims against Defendant Vogel ("Defendant") for First Amendment retaliation and Eighth Amendment excessive force. Doc. 30. On May 12, 2011, Plaintiff notified the Court of his willingness to proceed on his cognizable claims against Defendant Vogel. Doc. 29. On August 31, 2011, the Court adopted findings and recommendations and dismissed Plaintiff's remaining claims and defendants. Doc. 31. On September 21, 2011, Defendant filed a motion to dismiss. Doc. 32. On November 18, 2011, Plaintiff filed an opposition to Defendant's motion to dismiss. Doc. 35.
II. Legal Standard for Exhaustion Of Administrative Remedies
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[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 PLRA's exhaustion requirement is therefore mandatory, and no longer left to the discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). The PLRA's exhaustion requirement requires "proper exhaustion" of administrative remedies. Ngo, 548 U.S. at 93. This means "[p]risoners must now exhaust all 'available' remedies," id. at 85, in "compliance with an agency's deadlines and other critical procedural rules," id. at 90--91. The requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. Further, the remedies "available" need not meet federal standards, nor need they be "plain, speedy and effective." Porter v. Nussle, 435 U.S. 516, 524 (2002); Booth, 532 U.S. at 739-40 & n.5.
It is the prison's requirements, and not the PLRA, that define the
boundaries of proper exhaustion. Jones v. Bock, 549 U.S. 199, 218
(2007). The California Department of Corrections and Rehabilitation
("CDCR") provides inmates the right to file administrative appeals
alleging misconduct by correctional officers or "any departmental
decision, action, condition, or policy which they can demonstrate as
having an adverse effect upon their welfare." See Cal. Code Regs. tit.
15, §§ 3084.1(a) & (e). In order to exhaust all available
administrative remedies within this system, a prisoner must submit his
complaint as an inmate appeal on a 602 form, within fifteen*fn1
working days from the date the administrative decision or
action being complained of, and proceed through several levels of
appeal: (1) informal level grievance filed directly with any
correctional staff member; (2) first formal level appeal filed with
one of the institution's appeal coordinators; (3) second formal level
appeal filed with the institution head or designee; and (4) third
formal level appeal filed with the CDCR director or designee. Id. at
§§ 3084.5 & 3084.6(c); Brodheim v. Cry, 584 F.3d
1264--65 (9th Cir. 2009); Barry v. Ratelle, 985 F. Supp. 1235, 1237
(S.D. Cal. 1997). See Ngo v. Woodford, 539 F.3d 1108, 1110 (9th Cir.
2008) (Ngo II) (finding claims unexhausted where filed more than
fifteen working days after deadline).
Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by the defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. 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. Id.
A. Plaintiff Concedes Failure to Exhaust but Alleges Exhaustion was Futile
Plaintiff concedes that he did not exhaust his administrative remedies against Defendant Vogel through the third level of CDCR's administrative process before he filed this action on June 15, 2007. 2d Am. Compl., at 2, Doc. 26. Plaintiff alleges claims against Defendant Vogel from April and May 2006. 2d Am. Compl. at 6, Doc. 26. From February 8, 2006 to November 21, 2007, Plaintiff filed nineteen inmate appeals that the Institutional Appeals Office accepted for review. Def. Mot. Dismiss, Campbell Decl. at 2, Doc. 32. From April 12, 2004 to June 18, 2007, Plaintiff filed fifteen inmate appeals that the Chief of the Appeals Office accepted for third-level review. Def. Mot. Dismiss, Foston Decl. at 2, Doc. 32.
Plaintiff admits that he did not complete the administrative process for his claims against Defendant Vogel. 2d Am. Compl., at 2, Doc. 26. Plaintiff states the "Appeals Coordinator refused to process the grievance and defendants failed to respond and return the staff misconduct complaint." Id. However, the Appeals Coordinator is authorized and obligated to reject any appeal that is not submitted in compliance with prison regulations concerning the appeals process. See Cal. Code Regs. tit. 15, § 3084.3 (setting forth criteria for rejecting appeals). Moreover, Plaintiff does not allege any facts to show that the Appeals Coordinator improperly screened any of his appeals. See Pl. Opp'n, Doc. 35. In Plaintiff's opposition to Defendant's motion to dismiss, Plaintiff submitted a copy of his rejected appeal against Defendant Vogel, dated May 1, 2007, and date stamped received by the Appeals Office on June 14, 2007. Id. at 50. Plaintiff further submitted a First Level Screening Order from the Appeals Coordinator dated June 14, 2007, which rejected Plaintiff's appeal dated May 1, 2007, due to a time lapse. Id. at 44. The First Level Screening Order from the Appeals Coordinator stated the Plaintiff's issue was screened out on March 24, 2006 and April 11, 2006 for failing to meet time constraints. Id. The Appeals Coordinator stated that if Plaintiff would like to pursue the matter further, he must submit an explanation and supporting documentation explaining why he did not or could not timely file his appeal. Id. The Appeals Coordinator notified Plaintiff that his appeal is rejected, and he is formally warned that continued abuse of the appeals system will result in a recommendation to the Inmate Appeals Branch ("IAB") for an appeals restriction. Id.
B. Plaintiff Alleges Improper Screening by the Appeals Coordinator
Plaintiff contends that the March 24, 2006 and April 11, 2006 dates listed by the Appeals Coordinator do not coincide with his excessive force claim against Defendant Vogel from May 6, 2006. Pl. Opp'n at 9, Doc. 35. In Plaintiff's second amended complaint, Plaintiff states that the genesis of his complaint began on November 16, 2005, when he filed a staff complaint against Correctional Officer Castro. 2d Am. Compl. at 4, Doc. 26. Plaintiff further alleged that on April 17, 2006, he filed a staff complaint against Defendant Vogel. Id. at 6. Therefore, Plaintiff's allegations against Defendant Vogel arose prior to May 6, 2006. Id. Moreover, Plaintiff's May 1, 2007 staff complaint also included allegations regarding Castro, RVRs dated April 18, 2006 and May 10, 2006, and lack of due process at an RVR hearing. Pl. Opp'n at 50-52, Doc. 35. In addition, Plaintiff attached an interdisciplinary report dated January 26, 2005. Id. at 52. Thus, the March 24, 2006 and April 11, 2006 dates listed by Appeals Coordinator could have been referring to staff complaints addressing any one of Plaintiff's allegations. Id. at 44. Regardless, Plaintiff submitted a staff complaint dated May 1, 2007, for incidents from April 2006 and May 2006, well past the fifteen day deadline. See Cal. Code Regs. tit. 15, § 3084.6(c) (2007).
Plaintiff contends that the delay was caused by prison staff. Pl. Opp'n at 5-6, Doc. 35. However, Plaintiff does not state that he pursued his appeal by submitting an explanation and supporting documentation, explaining why he did not or could not timely file his appeal, as instructed by the Appeals Coordinator. Id. at 44. "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." Ngo, 548 U.S. at 90-91. Plaintiff contends that the warning of an appeals restriction by the Appeals Coordinator caused Plaintiff not to file or re-submit a staff complaint against Defendant Vogel. Pl. Opp'n at 8, Doc. 35. However, Plaintiff states ...