The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION TO DISMISS BE GRANTED ECF No. 20 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Findings and Recommendations
Plaintiff Amber Coston-Moore ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's Complaint against Defendant A. Sandoval for retaliation in violation of the First Amendment and failure to protect in violation of the Eighth Amendment. Pending before the Court is Defendant's motion to dismiss, filed November 22, 2011, pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure, for Plaintiff's failure to exhaust administrative remedies. Def.'s Mot. Dismiss, ECF No. 20. Plaintiff filed an opposition on July 30, 2012. ECF No. 27. On August 6, 2012, Defendant filed his reply. ECF No. 28. The matter is submitted pursuant to Local Rule 230(l).
Plaintiff alleges the following. In June and July of 2009, while incarcerated at Valley State Prison for Women ("VSPW"), Plaintiff was harassed by Defendant Sandoval. Plaintiff had filed a 5 grievance against Defendant Sandoval for making racial remarks. Defendant Sandoval confronted 6 Plaintiff as she was filing her grievance. The next day, Defendant Sandoval confronted Plaintiff 7 regarding a prior complaint that she had filed against Sergeant Hall for a broken finger incident 8 involving Hall. Defendant Sandoval told Plaintiff to get along with staff. On the Fourth of July, 9
Plaintiff was returning from dinner when she was attacked by two inmates. Plaintiff was summoned for a 115 hearing regarding this incident. Plaintiff declined to have Defendant Sandoval act as the hearing officer.
On August 5, 2009, at around 9 PM, Plaintiff received a message that her pregnant friend wanted to see her. As she walked towards the medical line, two other inmates ran towards her and began fighting with her. The two inmates then exited towards different building. Plaintiff suffered a black eye during this incident. Plaintiff was then handcuffed and escorted by housing staff to the program office. Defendant Sandoval arrived, and Plaintiff was escorted to his office. Plaintiff was asked to sign a non-enemy chrono. Another inmate then poked her head into the office to ask Defendant Sandoval what had happened, and Defendant Sandoval replied that Plaintiff had gotten into an altercation with two other inmates from building 3 and building 4. Plaintiff had not informed Defendant Sandoval of how many there were or where they were housed, but Defendant Sandoval knew beforehand. Plaintiff was then escorted back to the holding cage and no longer wished to sign a non-enemy chrono because she did not feel safe in general population and wanted to remain in administrative segregation.
III. Exhaustion of Administrative Remedies
Pursuant to the Prison Litigation Reform Act 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). Prisoners are required to exhaust the available 2 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. 3 Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required regardless of 4 the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 5 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to 6 prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 7 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 8 defense under which defendants have the burden of raising and proving the absence of exhaustion. 9
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 curiam)). 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. Id. at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
The CDCR has an administrative grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). At the time of the events in question, the process was initiated by submitting a CDC Form 602. Id. § 3084.2(a). 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." Id. § 3084.5. 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. §§ 3084.5, 3084.6(c). In order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always require pursuit of an appeal through the Director's Level of Review. What is required to satisfy exhaustion is a fact specific inquiry, and may be dependent upon prison officials' response to the appeal. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (improper reasons for ...