The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANTS'
MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED
OBJECTIONS, IF ANY, DUE IN THIRTY (30) DAYS
Quetzal Contreraz ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 15, 2004, at the United States District Court for the Northern District of California. (Doc. 1.) On July 30, 2004, the case was transferred to the Eastern District of California. Id. This action now proceeds on the Second Amended Complaint filed on January 22, 2009, against defendants Warden Derral Adams, Chaplain Michael Raymond, and Chaplain Darrow Hetebrink ("Defendants"), on Plaintiff's claims for violation of his right to Free Exercise under the First Amendment, and violation of his right to Equal Protection under the Fourteenth Amendment, for denying Plaintiff a religious diet, the right to wear facial hair, and accommodations to perform a full moon ritual, consistent with religious tenets of the Olin Pyramid Religion. (Doc. 32.)
On May 17, 2010, defendant Adams filed a motion to dismiss Plaintiff's claims concerning his right to a religious diet and his right to use the prison chapel to perform a full moon ritual, based on Plaintiff's failure to exhaust administrative remedies before filing suit. (Doc. 44.) On November 2, 2010, defendant Hetebrink joined the motion to dismiss. (Doc. 54.) On July 25, 2011, Plaintiff filed an opposition to the motion.*fn1 (Doc. 70.) On October 13, 2011, defendants Adams and Hetebrink filed a reply to Plaintiff's opposition. (Doc. 76.) On October 19, 2011, defendant Raymond joined the motion to dismiss and the reply. (Doc. 78.) Defendants' motion to dismiss is now before the Court.
II. STATUTORY EXHAUSTION REQUIREMENT
Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that "[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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which Defendant has the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt, 315 F.3d at 1119. 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, 315 F.3d at 1119 (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 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.
III. SUMMARY OF PLAINTIFF'S ALLEGATIONS
At the time of the events at issue, Plaintiff was a state prisoner at the California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California, and Defendants were employed at SATF. Plaintiff alleges as follows in the Second Amended Complaint. Plaintiff is a Native American who observes the Olin Pyramid Religion. Plaintiff arrived at SATF in May 2001 and thereafter had numerous contacts with defendant Raymond, the Native Spiritual Advisor or Chaplain at the prison, regarding Plaintiff's religious need for facial hair. Plaintiff sought and was denied an exemption from the prison rule that prohibited any kind of facial hair save a brief mustache. Defendant Adams supported defendant Raymond's finding against the exemption, which was based on Plaintiff's inability to provide the required "attestation letter" verifying Plaintiff's religious need for facial hair.
On or about March 23, 2003, Plaintiff wrote to defendant Hetebrink, the Protestant Chaplain at SATF, requesting a religious diet consistent with the tenets of the Olin Pyramid Religion. After consideration, Plaintiff's request was denied, and Plaintiff protested by observing a hunger strike. Plaintiff wrote to defendant Adams about defendant Hetebrink's refusal to accommodate Plaintiff's request for a religious diet, but defendant Adams never responded. Plaintiff offered materials to defendant Hetebrink in an attempt to explain his religion, but Hetebrink refused to look at the materials, stating, "Indians don't have a Bible."
On or about August 10, 2004, Plaintiff wrote to defendant Hetebrink, asking for daytime access to the chapel once a month to perform a full moon ritual in relation to Plaintiff's religious beliefs. Defendant Hetebrink denied the request, stating there was no staff supervision for Plaintiff to perform a ritual once a month in the Chapel. Plaintiff contends there was adequate staff available to accommodate Plaintiff's need.
Plaintiff was punished for having facial hair, lost privileges, was confined to his cell, lost good behavior credits, and was issued a Rules Violation Report which led to the rejection ofPlaintiff's right to a parole date by the Board of Parole Hearings Committee. Plaintiff was forced to shave off his facial hair against his will. Plaintiff requests monetary damages.
IV. MOTION TO DISMISS FOR FAILURE TO EXHAUST
The Court takes judicial notice of the fact that the California Department of Corrections and Rehabilitation ("CDCR") has an administrative grievance system for prisoner complaints. Cal.Code Regs., tit. 15 § 3084.1 (2007). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). 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). 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. In order to satisfy ...