FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANT'S MOTION TO DISMISS AND DISMISSING ACTION, WITHOUT Doc. 56 PREJUDICE, FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
I. Procedural History and Background
On January 14, 2008, Plaintiff Mark Jones ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action jointly with his wife, Christine Jones, pursuant to 42 U.S.C. § 1983. Doc. 1. On January 31, 2011, the Court severed the case and ordered Plaintiff's wife, Christine Jones, to file a separate action. Doc. 38.*fn1 In Plaintiff's fifth amended complaint, Plaintiff states that Defendant Couch searched and detained his wife and threatened her that Plaintiff would be sent back to the Security Housing Unit if she told Plaintiff about the harassment and he filed an inmate grievance. Pl. 5th Am. Compl. at 9, Doc. 39. On May 13, 2011, the Court adopted findings and recommendations and ordered the case to proceed on a cognizable First Amendment retaliation claim against Defendant Couch. Doc. 44. On June 6, 2011, the Court issued a second informational order, advising Plaintiff that Defendant 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. 47. On December 16, 2011, Defendant filed a motion to dismiss for failure to exhaust administrative remedies. Doc. 56. On January 10, 2012, Plaintiff filed an opposition to Defendant's motion to dismiss. Doc. 58. On January 18, 2012, Defendant filed a reply to Plaintiff's opposition. Doc. 59.
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, 534 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*fn2 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 take sufficient steps to pursue an inmate appeal for his claim of retaliation by Defendant Couch, in accordance with requirements for exhaustion. See Pl. Opp'n. at 4-6, Doc. 58; see Pl. 5th Am. Compl. at 2, Doc. 39; see also Def. Mot. Dismiss, Foston Decl. at 2 & Hall Decl. at 3, Doc. 56.
In Plaintiff's objections, he states that he did not know his wife was detained until five or six days after the occurrence. See Pl. Obj. at 14-19, Doc. 58. The Court notes that finding out five or six days after the incident would not preclude Plaintiff from submitting an inmate appeal within fifteen working days. Cal. Code Regs. tit. 15, § 3084.6(c).
Plaintiff attached a decision at the second and third level regarding a rules violation report for delaying a peace officer, allegations of racism against Lt. Perez, and a request for reinstatement of visiting privileges. See Pl. Obj. at 14-19, Doc. 58. For purposes of the PLRA's exhaustion requirement, "a grievance 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). Ultimately, a grievance must "provide enough information . . . to allow prison officials to take appropriate responsive measures." Id. at 1121. Plaintiff's appeal regarding a rules violation report for delaying a peace officer and allegations of racism against Lt. Perez did not alert the prison officials of the pending claims in this civil action, pursuant to Griffin and the PLRA.
In Plaintiff's opposition, he states that the visiting staff did not give Plaintiff a reason why his wife was denied visiting rights, thereby making his remedies unavailable. See Pl. Opp'n. at 3-4, Doc. 58. In support of his contention, Plaintiff cites Casanova v. Dubois, 304 F.3d 75, 77 (1st Cir. 2002) for the proposition that no grievance process was available to him when no record of his wife's visit existed. However, Casanova is distinguishable because in that case, the Massachusetts prison system expressly treated complaints of civil rights abuses against staff as "not grievable." Id. By contrast, California broadly grants inmates the right to appeal any action that the inmates perceive to be adversely affecting their welfare. See Cal. Code Regs. tit. 15, § 3084.1(a). Plaintiff fails to demonstrate that no administrative remedies were available to him.
Plaintiff also submitted a draft of an inmate appeal without a date stamp regarding his wife being harassed and searched at visitation. See Pl. Opp'n. at 12, Doc. 58. In the appeal draft, he alleged no response by the appeals coordinator. Id. There is no indication that the ...