The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT'S
MOTION TO DISMISS FOR FAILURE TO EXHAUST BE DENIED
(Doc. 57.) OBJECTIONS, IF ANY, DUE IN TWENTY (20) DAYS
Kelly Morgan ("Plaintiff") 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 the Complaint commencing this action on February 15, 2008. (Doc. 1.) This case now proceeds on Plaintiff's Third Amended Complaint, filed on July 28, 2011, against defendant Correctional Officer (C/O) M. Hernandez ("Defendant") for retaliation and obstruction of mail, in violation of the First Amendment.*fn1 (Doc. 45.) On December 22, 2011, Defendant filed a motion to dismiss this action based on Plaintiff's failure to exhaust administrative remedies before filing suit. (Doc. 57.) On April 18, 2012, Plaintiff filed an opposition to the motion.*fn2 (Doc. 60.) Defendant did not file a reply. Defendant's motion to dismiss is now before the Court.
II. STATUTORY EXHAUSTION REQUIREMENT
Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides 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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which Defendant has the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 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 curium)). 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.
III. SUMMARY OF PLAINTIFF'S ALLEGATIONS AGAINST DEFENDANT HERNANDEZ FOR RETALIATION AND MAIL OBSTRUCTION
The events at issue allegedly occurred at Pleasant Valley State Prison in Coalinga, California,
when Plaintiff was incarcerated there. Plaintiff alleges that on August 1, 2007, he filed an inmate grievance against Defendant Hernandez, alerting prison staff that Defendant engaged in a pattern of harassment against Plaintiff. Specifically, Plaintiff alleges that Defendant intentionally withheld Plaintiff's mail to retaliate against Plaintiff for filing a previous inmate grievance against Defendant on or about July 28, 2007. Plaintiff also alleges that Defendant confined Plaintiff to quarters for four days when Plaintiff complained about denial of medical treatment.
IV. MOTION TO DISMISS FOR FAILURE TO EXHAUST
The Court takes judicial notice of the fact that the California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal.Code Regs., tit. 15 § 3084.1 (2007). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). 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. at §§ 3084.5, 3084.6(c). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. at § 3084.5. 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 (2006); McKinney, 311 F.3d. at 1199-1201.
Defendant argues that this action should be dismissed because Plaintiff failed to exhaust the CDCR's administrative appeals process regarding his claims against Defendant before filing this lawsuit on February 18, 2008. Defendant submits evidence that on August 1, 2007, Plaintiff filed a CDCR 602 administrative appeal against Defendant, concerning the alleged harassment and mail issues, and the appeal was screened out and returned to Plaintiff on the ground that it was duplicative of an earlier appeal filed by Plaintiff alleging harassment by Defendant. (Third Amended Complaint (3ACP), Doc. 45 at 3; Declaration of J. Morgan ("Morgan Decl."), Doc. 57-2 ¶5 and Exhs. B & C.)
Defendant asserts that Plaintiff's appeals do not appear to be duplicative, as the earlier appeal makes no mention of harassment or mail issues, but Plaintiff did not contest the rejection of his appeal, despite receiving written instructions on how to contest that decision if he so desired. (Morgan Decl. ¶¶5, 6 and Exhs. B & C.) Thus, Defendant argues that Plaintiff did not exhaust the remedies available to him ...