FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING
DEFENDANTS' MOTION TO DISMISS AND DISMISSING ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES Doc. 35
OBJECTIONS DUE WITHIN THIRTY DAYS
REPLY DUE FIFTEEN DAYS THEREAFTER
Findings and Recommendations
On August 3, 2010, Plaintiff Sylester Williams ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On August 4, 2011, Plaintiff filed a third amended complaint, alleging Eighth Amendment cruel and unusual punishment for inadequate air, heat, sanitation, and ventilation against Defendants M. Camps and Sgt. R. Anderson ("Defendants"), who were employees of Corcoran State Prison ("Corcoran"). 3d Am. Compl. at 2, Doc. 24.*fn1
On August 29, 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. 28. On November 4, 2011, Defendants filed a motion to dismiss for failure to exhaust administrative remedies. Doc.
35. On November 15, 2011, Plaintiff filed a motion for extension of time to respond to the motion to dismiss and requested copies of his inmate appeals. Doc. 36. On November 22, 2011, Defendants submitted a response to Plaintiff's motion for an extension of time and included copies of his inmate appeals. Doc. 37. On November 29, 2011, Plaintiff filed an opposition to Defendants' motion to dismiss. Doc. 38. On December 6, 2011, Defendants filed a reply to Plaintiff's opposition. Doc. 40. On December 28, 2011, Plaintiff filed a supplemental opposition to Defendants' motion to dismiss. Doc. 45. On January 19, 2012, Defendants filed a response to Plaintiff's supplemental opposition. Doc. 50. On February 8, 2012, Plaintiff filed an additional response and exhibits in opposition to Defendants' motion to dismiss. Doc. 58. On February 13, 2012, Plaintiff filed a second additional response and exhibits in opposition to Defendants' motion to dismiss. Doc. 59. On February 27, 2012, Plaintiff filed a motion for subpoena of his Central File ("C-File"). Doc. 60. On March 13, 2012, Plaintiff filed another supplemental opposition to Defendants' motion to dismiss. Doc. 62.*fn2
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*fn3
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 pursue an appeal regarding the allegations in this complaint, i.e, inadequate air, heat, sanitation, and ventilation, through the third level of review, in accordance with requirements for exhaustion. See 3d Am. Compl. at 2, Doc. 24; see also Def. Mot. Dismiss, Foston Decl. at 3 & Zamora Decl. at 3, Doc. 35.
Plaintiff cites Brown v. Valloff, 422 F.3d 926 (9th Cir. 2005) for the premises that a prisoner need not pursue his appeal to the third level once he has received all available remedies at an intermediate level. Pl. Opp'n at 3, Doc. 38; See Pl. 2d Addl. Opp'n at 2, Doc. 59. However, it is clear that Plaintiff did not receive all available remedies, as Plaintiff states in his third amended complaint that ...