FINDINGS AND RECOMMENDATIONS
DEFENDANTS' MOTION TO DISMISS AND
DISMISSING ACTION, WITHOUT PREJUDICE, FOR FAILURE TO
OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
On February 9, 2005, Plaintiff Perry Adron McCullough ("Plaintiff"), a federal prisoner proceeding pro se and in forma pauperis, filed a complaint in the United States District Court for the District of Columbia, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Doc. 1. On March 15, 2006, the United States District Court for the District of Columbia transferred this action to the United States District Court for the Eastern District of Columbia. Id. On March 30, 2009, Plaintiff filed a second amended complaint. Doc. 62. On December 6, 2010, the Magistrate Judge issued findings and recommendations, recommending this case proceed on Plaintiff's cognizable claims of First Amendment retaliation against Defendants R.D. Andrews, T. Bianco, F. Buckholz, Terry Craig, Jeffrey Cruz, Raylene Dougherty, H.J. Gardner, Matthew Holm, John Pendelson, Georgina Puentes, Barbara Steward, Bob Steifer, and J. Towes*fn1 ("Defendants") and against Defendant Federal Bureau of Prisons ("BOP") for violation of the Privacy Act. Doc. 86. On December 29, 2010, the Court adopted the findings and recommendations and dismissed Plaintiff's remaining claims and defendants. Doc. 91.
On January 24, 2011, the Court issued a second informational order, advising Plaintiff that Defendants may file an unenumerated 12(b) motion to dismiss for failure to exhaust administrative remedies and how Plaintiff must oppose the motion in order to avoid dismissal, pursuant to 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 curiam)). Doc. 94. On April 8, 2011, Defendant BOP filed a motion to dismiss, for failure to exhaust administrative remedies. Doc. 97. On September 1, 2011, the remaining Defendants filed a motion to dismiss, for failure to exhaust administrative remedies. Doc. 112.*fn2 On September 19, 2011, the Court adopted findings and recommendations, which granted Defendant BOP's motion to dismiss for failure to exhaust administrative remedies and dismissed Defendant BOP from this action. Doc. 117. On September 26, 2011, Plaintiff filed a response to the remaining Defendants' motion to dismiss. Doc. 118. On October 12, 2011, Defendants filed a reply to Plaintiff's response. Doc. 120.
From early 2001 until July 2002, Plaintiff was housed at Taft Correctional Institution ("Taft"),*fn3 a "low" security prison, which is owned and operated by a private company and is operated under a contract with the BOP. Pl. 2d Am. Compl. at 2-3, 5 & 12, Doc. 62; Defs.' Mem. Mot. Dismiss at 3-4, Doc. 113. Defendants were employed by Taft, a private company. Id. at 4.
On November 26, 2001, inmates at Taft conducted a work / food strike, which resulted in an institutional lockdown. Pl. 2d Am. Compl. at 6; Defs.' Mem. Mot. Dismiss at 4. Defendants charged Plaintiff with taking a leading role that led to the strike. Defs.' Mem. Mot. Dismiss at 4. On December 21, 2011, Defendants issued a disciplinary report finding Plaintiff guilty of "conduct which interferes with the orderly running of the institution." Pl. 2d Am. Compl. at 9 & 14; Defs.' Mem. Mot. Dismiss at 4. Plaintiff filed an appeal and his disciplinary report was reversed and expunged. Pl. 2d Am. Compl. at 11-12; Defs.' Mem. Mot. Dismiss at 4. However, Defendant Warden Andrews retained the expunged disciplinary report in Plaintiff's central file as a "management variable" in case of possible transfer. Defs.' Mem. Mot. Dismiss at 4 & 7. Defendants notified Plaintiff of this status in his third discipline hearing report. Defs.' Mem. Mot. Dismiss at 4. On July 12, 2002, based on this disciplinary report "management variable" in Plaintiff's file, BOP transferred him to Federal Correctional Institution in Tucson, Arizona, a "medium" security prison. Pl. 2d Am. Compl. at 12; Defs.' Mem. Mot. Dismiss at 4. Plaintiff alleges that Defendants transferred Plaintiff from a low security prison to a medium security prison in retaliation, based on the expunged disciplinary report "management variable" in Plaintiff's file. Pl. 2d Am. Compl. at 2. Plaintiff did not file a prison grievance regarding Defendants' actions of retaining the expunged disciplinary report or for the alleged transfer in retaliation. See Pl. 2d Am. Compl. at 14. On February 9, 2005, Plaintiff initiated this civil action. Doc. 1. Plaintiff's second amended complaint seeks $350,000 in compensatory damages as well as punitive damages from Defendants, who were employed by Taft, a private company. Pl. 2d Am. Compl. at 4 & 15.
III. Defendants' Motion to Dismiss 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 Bureau of Prisons has established an administrative remedy procedure which allows federal prisoners to seek non-judicial review of any aspect of their imprisonment. See 28 C.F.R. §§ 542.10 through 542.19. The program affords inmates multiple levels of administrative review through which a remedy for their particular grievance may be obtained. First, an inmate must attempt to resolve the issue informally by presenting it to staff before filing an administrative appeal. 28 C.F.R. § 542.13. If dissatisfied with the response, the prisoner may proceed with the formal filing of an administrative remedy request on a BP-9 form. 28 C.F.R. § 542.14. Upon denial by the institution, the prisoner may appeal the decision by filing a BP-10 Appeal with the Regional Director of the BOP. 28 C.F.R. § 542.15. The Regional Director's decision can then be appealed by submitting a BP-11 Appeal to the BOP General Counsel in Washington, D.C., which constitutes the final step in the administrative remedy process. Id.
Of course, an inmate who wishes to utilize the BOP's Administrative Remedy Program must comply with certain procedural rules and deadlines. 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). Federal inmates must file an initial administrative remedy request within twenty calendar days from the date on which the basis for the request occurred. 28 C.F.R. §542.14(a). To appeal a decision of the Regional Director, the prisoner must seek review from the General Counsel within thirty calendar days of the Regional Director's response. 28 C.F.R. §542.15(a). Although the procedure sets forth deadlines at each step of the administrative remedy program, extensions in filing time may be granted. 28 C.F.R. §§ 542.14(b); 542.15(a). An inmate whose appeal is rejected for procedural errors may also be given additional time to correct the defects in his filing. 28 C.F.R. §542.17(b). Even if the prisoner's appeal is rejected as untimely, he is still entitled to appeal that rejection to the next level of administrative review. 28 C.F.R. §542.17(c). Still, any difficulties which the prisoner may experience in meeting the time requirements for an administrative appeal are properly first brought before the administrative agency for review. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986).
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, 315 F.3d at 1119. 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 ...