The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANT'S MOTION TO DISMISS (ECF No. 23) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Stanford Paul Bryant 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 this action on May 12, 2010. On November 2, 2011, pursuant to 28 U.S.C. § 1915A, the Magistrate Judge issued an order finding service of the complaint appropriate, and this action is proceeding against Defendant Karlow for retaliation in violation of the First Amendment.*fn1 Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). On January 30, 2012, Defendant filed a motion to dismiss for failure to exhaust administrative remedies. Plaintiff has not filed an opposition. The motion has been deemed submitted. Local Rule 230(l).
Defendant argues that Plaintiff failed to exhaust his retaliation claim in compliance with 42 U.S.C. § 1997e(a), subjecting the claim to dismissal. Pursuant to the Prison Litigation Reform Act ("PLRA") of 1995, "[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 section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006). All available remedies must be exhausted, not just those remedies that meet federal standards, Woodford, 548 U.S. at 84, nor must they be "plain, speedy, and effective," Booth v. Churner, 532 U.S. 731, 739 (2001). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Id at 741; see Woodford, 548 U.S. at 93.
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084, et seq. "Any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). At the time the claims at issue in this action occurred, four levels of appeal were involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Cal. Code Regs. tit 15, § 3084.5.
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense which defendants have the burden of raising and proving the absence of exhaustion. Lira v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). 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 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 curium)). "In deciding a motion to dismiss for failure to exhaust, a court may look beyond the pleadings and decide disputed issues of fact." Sapp v. Kimbrell, 623 F.3d. 813, 821 (9th Cir. 2010) (quoting 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, even where there has been exhaustion while the suit is pending. Lira, 427 F.3d at 1171.
Plaintiff states that, while housed at the California Correctional Institution ("CCI"), he filed an inmate appeal no. CCI 09-01149, regarding his limited access to the law library. Defendant Karlow interviewed Plaintiff on August 6, 2009, regarding the appeal and informed Plaintiff that he was only entitled to two hours per week in the law library. (First Am. Compl. 15,*fn2 ECF No. 15.) Plaintiff alleges that, in retaliation for Plaintiff filing the inmate appeal, Defendant Karlow denied him access to legal materials and the law library. (Id. at 16.)
2. Exhaustion of First Amendment Claim
Defendant contends that Plaintiff did not file an inmate appeal regarding his claim that Defendant Karlow retaliated against him. During the time Plaintiff was housed at CCI, Plaintiff filed two inmate appeals. The first appeal, which is the only appeal that was submitted to the director's level prior to Plaintiff filing this action, is the appeal which Plaintiff claims caused Defendant Karlow to begin retaliating against him. The second appeal, which involves Plaintiff's access to the law library, does not mention any misconduct on the part of Defendant Karlow. Defendant argues that since Plaintiff did not file an inmate appeal placing the prison on notice that Defendant Karlow retaliated against him, Plaintiff's claims should be dismissed for failure to exhaust administrative remedies.
Plaintiff filed inmate appeal no. CCI 09-01149 on July 5, 2009, grieving that he was denied meaningful access to the law library and photocopying. In the appeal, Plaintiff states that he has provided librarian Stanford with legal documents that have not been copied. (Dec. D. Foston 4, ECF No. 23-2.) Plaintiff claims that it was because of this appeal that Defendant Karlow began to retaliate against him. Since this appeal was filed prior to the alleged retaliation by ...