The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff's August 12, 2011 amended complaint against defendants Walker, Virga, Johnson, Pool, and Donahoo, as to plaintiff's claims that defendants interfered with the delivery of plaintiff's regular and legal mail for eight months while plaintiff was out to court, and for another forty days after plaintiff was returned to prison. Pending before the court is defendants' motion to dismiss these claims on multiple grounds pursuant to Rules 12(b) and 12(b)(6) of the Federal Rules of Civil Procedure. After carefully reviewing the record, the undersigned concludes that defendants' motion to dismiss should be denied in part and granted in part, and plaintiff should be granted leave to file a second amended complaint.
II. Plaintiff's Amended Complaint
Plaintiff alleges that while he was housed at California State Prison, Sacramento ("CSP-SAC"), defendants withheld, failed to forward, and failed to deliver plaintiff's incoming regular and legal mail in violation of plaintiff's First and Fourteenth Amendment rights, and interfered with plaintiff's right to access the courts. (Dkt. No. 16 at 13.) Specifically, plaintiff contends that defendants withheld his incoming mail for over eight months while plaintiff was out to court, and that once he returned to the prison, it was over forty days before plaintiff's withheld legal mail was presented to plaintiff on July 29, 2008. Plaintiff seeks declaratory relief, and compensatory and punitive damages.
III. Motion to Dismiss - Failure to Exhaust
Defendants claim plaintiff failed to first exhaust his administrative remedies.
Plaintiff filed an opposition; defendants filed a reply.
A. Legal Standard re Exhaustion
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide 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). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734. The fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records). The Supreme Court has cautioned courts against reading futility or other exceptions into the PLRA exhaustion requirement. See Booth, 532 U.S. at 741 n.6.
A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Id., at 936-37.
As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, compliance with grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84. When the rules of the prison do not dictate the requisite level of detail for proper review, a prisoner's complaint "suffices if it alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). This requirement is so because the primary purpose of a prison's administrative review system is to "notify the prison of a problem and to facilitate its resolution." Griffin, 557 F.3d at 1120.
The State of California provides its prisoners the right to appeal
administratively "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) (2010). It also
provides them the right to file appeals alleging misconduct by
correctional officers and officials. Id. at § 3084.1(e). In order to
exhaust available administrative remedies within this system, a
prisoner must proceed through several levels of appeal:*fn1
(1) informal resolution, (2) formal written appeal on a 602
inmate appeal form, (3) second level appeal to the institution head or
(4) third level appeal to the Director of the California Department
of Corrections and Rehabilitation. Barry v. Ratelle, 985 F.Supp. 1235,
1237 (S.D. Cal. 1997) (citing Cal.Code Regs. tit. 15, § 3084.5). A
final decision from the Director's level of review satisfies the
exhaustion requirement under § 1997e(a). Id. at 1237-38; 15 Cal. Code
Regs. § 3084.7(d)(3).
Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court may look beyond the pleadings to determine whether a plaintiff exhausted his administrative remedies. Id. at 1119-20.
B. Analysis re Exhaustion
i. Outgoing Mail: Personal Correspondence
Defendants concede that plaintiff exhausted his allegation that defendants impeded the delivery of his outgoing mail, defined as personal correspondence by plaintiff, through Grievance No. 07-02453. In this grievance, plaintiff alleged that mail room staff delayed the mailing of his personal correspondence for periods of up to three weeks. (Dkt. No. 16 at 21.)
The grievance was granted at the second level of review (dkt. no. 16 at 29), and screened out on that basis at the third level of review because no unresolved issue remained. (Dkt. No. 29 at 27.) Plaintiff does not include a claim concerning outgoing mail in the amended complaint.
ii. Incoming Legal Mail/Access to the Courts
a. Grievance No. 07-02453 - Incoming Legal Mail
First, it appears plaintiff contends that Grievance No. 07-02453 also exhausts his claim that defendants withheld his incoming legal mail. Plaintiff relies on his reference to "the sending and receiving of inmate regular and legal mail" which he alleges was contained in the September 2, 2007 grievance and "clearly expressed his concerns." (Dkt. No. 29 at 12.) Defendants argue that the 2007 grievance was expressly limited to outgoing personal correspondence, which plaintiff reinforced in section F, where he provided his reasons for requesting a second level review.
In Grievance No. 07-02453, plaintiff described his problem as follows: This (602) complaint arises out of a mail issue. Prison staff/officials are impeding my correspondence with family and friends outside of prison. Article 4 Title 15 "mail" (general policy) provides in part that "the Department encourages correspondence between inmates and persons outside the correctional facilities." It further states "the sending and receiving of mail by inmates will be uninhibited except as provided in this article." My mail has not been leaving the institution/prison until 3 weeks after I've been giving it to the prison staff at my cell door to be mailed. My close family & friends who communicate with [me] on a regular basis have informed me that my letters are "postmarked" 3 weeks from the date that it's given to the officer at my door which is recorded at the top right corner of every letter that I write. . . .Instead of encouraging family ties and correspondence, prison staff members are actually inhibiting correspondence and discouraging family ties and communication.
(Dkt. No. 16 at 21.) Plaintiff contended that the holding of plaintiff's mail violated "federal law" without a penological reason, destroyed family ties, and broke down communication by holding important materials such as birthday and anniversary cards for his wife and friends. (Id. at 21-22.) In the action requested section, plaintiff stated: To be informed in writing why my mail is being held and by whom, to be free from retaliation for my staff complaint, to have all my mail, legal and regular, leave the prison as set forth in the plan of operation.
(Dkt. No. 16 at 19.) The grievance was denied at the informal level, and plaintiff sought a formal level review. (Id.) The first level appeal was partially granted. (Dkt. No. 16 at 25.) Plaintiff was informed that in the event his mail was withheld, he would be given notification by form CDCR 1819, after which plaintiff would have 15 working days to decide the disposition of the mail withheld. (Dkt. No. 25 at 42.) On July 17, 2008, prior to plaintiff's receipt of the withheld legal mail, plaintiff noted that he was dissatisfied with the first level response, and sought a second level review because the response erroneously stated plaintiff complained his mail was being withheld. (Dkt. No. 16 at 20.) Plaintiff clarified that his "complaint contends that [his] correspondence is being impeded by prison staff. Please respond accordingly (returned from out to court status)." (Id.)
On August 22, 2008, plaintiff's grievance was granted at the second level of review, stating, in pertinent part, "[y]our request that your mail leave the institution without any delays is granted, per SAC Operational Procedure #17, which states in part, 'All inmate mail that does not require special handling will be processed in/out of the Mailroom within 40 business hours.'" (Dkt. No. 16 at 29.)
On September 1, 2008, after plaintiff was delivered the packet of withheld legal mail on July 29, 2008, plaintiff sought a Director's Level Review of Grievance No. 07-02453, adding his new claim that incoming legal mail was withheld by the CSP-SAC mailroom while plaintiff was out to court.
On October 14, 2008, the Chief of the Inmate Appeals Branch ("IAB") responded to plaintiff's third level of appeal. (Dkt. No. 29 at 27.) The Chief noted that plaintiff's appeal was being screened out and returned to plaintiff because the "appeal was granted at the institutional level. There is no unresolved issue to be reviewed at the Director's Level of Review." (Id.)
Plaintiff's attempt to further expand the scope of his grievance at the third level of his appeal does not comply with the procedures requiring him to describe his problem and action requested in Sections A and B of the form. Cal. Code Regs., tit. 15 § 3084.2(a) (2010). "[A]n inmate must first present a complaint at the first level of the administrative process. See Cal. Code Regs. tit. 15, § 3084.5." Sapp v. Kimbrell, 623 F.3d 813, 825 (9th Cir. 2010).*fn2 Because plaintiff's appeal was granted at the second level, his third level appeal was screened out, and plaintiff's newly-added incoming legal mail claim was not considered. The fact that plaintiff's new claim was not addressed further does not render the claim exhausted. See Henderson v. Rodriguez, 2009 WL 817750 at *3-4 (E.D. Cal. 2009).
Because the language in Grievance No. 07-02453 specifically identifies plaintiff's concern as to his outgoing personal correspondence with family and friends, Grievance No. 07-02453 cannot serve to exhaust plaintiff's claim that defendants subsequently withheld plaintiff's incoming legal mail while plaintiff was out to court, or after he returned from being out to court. Although plaintiff also referenced "legal mail" in his request for relief, that is, requesting that his legal and regular mail leave the institution without any delays, such a request for relief is insufficient to put prison authorities on notice that plaintiff was having difficulty receiving incoming legal mail, particularly in light of plaintiff's specific characterization of his problem as mail room staff were impeding his correspondence with family and friends, and were delaying the correspondence from leaving the prison.
b. The Screened-Out Grievance - Incoming Legal Mail/
Second, plaintiff contends that he should be relieved of his requirement to exhaust his claims concerning legal mail and access to the courts because his subsequent grievance was improperly screened out. Plaintiff provided copies of the screening forms, as well as a copy of the initial appeal.
Defendants argue that plaintiff did not properly exhaust his legal mail claim because he did not receive, before filing the instant action, a decision on the merits from the Director's Level of Review, and he did not comply with defendant Pool's request to provide related screening forms. (Dkt. No. 27-1 at 7.) In support of this argument, defendants submit a declaration by K. Daly ("Daly"), Appeals Coordinator for the Institutional Appeals Office at CSP-SAC. (Dkt. No. 27-3.) According to Daly, the appeals coordinator screens inmate appeals for compliance with regulations, coordinating their processing, and maintaining inmate appeal records. (Id.) When an inmate submits an appeal that does not comply with regulations governing the appeal process, the appeals coordinator will screen and return the appeal, without assigning a log number, with the reason for the screening and instructions on how to correct the defect, if correction is possible. (Id.)
Daly provided a chart of plaintiff's appeals that were accepted for review at the Institutional Appeals Office. Plaintiff's Grievance No. 07-02453 concerning mail was accepted for review at the second level on July 25, 2008. (Dkt. No. 27-3 at 2.) No appeal regarding plaintiff's legal mail or access to the courts was accepted for review between August 1, 2007, and February 24, 2011. (Id.) Plaintiff submitted one appeal pertaining to the withholding of legal mail and denial of access to the courts, dated August 5, 2008, but the appeal was screened out and not provided a log number. (Id.) Plaintiff was provided a screening form, dated October 21, 2008, which advised him to attach all previous screening forms related to the appeal before the appeal would be processed. (Id.)
Finally, defendants provided a declaration by D. Foston, Chief of the Office of Appeals, formerly known as the IAB, confirming that no appeal regarding the withholding of personal and legal mail or denial of access to the courts due to mail being withheld was accepted at ...