FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANTS' MOTION TO DISMISS AND DISMISSING ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Doc. 36
OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
On March 31, 2008, Plaintiff Balwinder Singh Tung ("Plaintiff"), a state prisoner proceeding in forma pauperis and represented by retained counsel, Marc E. Grossman, Esq., filed this civil rights action pursuant to 42 U.S.C. § 1983. On March 3, 2011, the Court adopted findings and recommendations that Plaintiff's third amended complaint proceed on his cognizable claims against Defendants Governor Schwarzenegger and Secretary Cate of the California Department of Corrections and Rehabilitation ("Defendants") for Eighth Amendment deliberate indifference to health and cruel and unusual punishment, due to Defendants' policy of housing prisoners in buildings that exceeded 100 percent of their design capacity, and that this resulted in "dirty air" that caused him to have pneumonia and other lung diseases and problems. Docs. 27 & 29.
On April 14, 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. 32. On October 12, 2011, Defendants filed a motion to dismiss for failure to exhaust administrative remedies. Doc. 36. On December 8, 2011, Plaintiff filed an opposition to Defendants' motion to dismiss. Doc. 42. On December 13, 2011, Defendants filed a reply to Plaintiff's opposition. Doc. 43.
II. Motion to Dismiss for Failure to Exhaust 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 1262, 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, 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 the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
Plaintiff did not file a grievance regarding his allegations that prison overcrowding caused him to have pneumonia and other lung diseases and problems. See 3d Am. Compl. at 2, Doc. 26; 2d Am. Compl. at 2, Doc. 24; Compl. at 2, Doc. 1. Plaintiff alleges that he is exempt from the requirements of exhaustion because he would be unable to obtain money damages through the prison grievance system. See id.; see also Pl. Opp'n at 3, Doc. 42.
Exhaustion is a prerequisite to suit even if the relief sought by an inmate, notably money damages, is not available in the administrative process. Porter, 534 U.S. at 524; Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). However, in addition to damages, Plaintiff also seeks an injunction ordering that he be placed in a single cell or bunk, as a remedy for the harm to his health caused by being housed in a cell or dorm with other inmates. Pl. Opp'n at 4, Doc. 42.
In Plaintiff's opposition, he contends that he did submit inmate appeals and attached copies of inmate appeals in support of his argument. See Pl. Opp'n, Doc. 42. However, the inmate appeals Plaintiff attached refer to complaints regarding his diabetic needs and property loss claims. See id. None of these appeals involve a complaint that Defendants subjected Plaintiff ...