The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF Nos. 25, 26, 27, 30.) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations on Defendants' Motion to Dismiss
Plaintiff Kevin Fields is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint, filed September 17, 2010, against Defendants Masiel, Aguirre, and Hernandez for retaliation in violation of the Eighth Amendment. (ECF No. 17.) On May 16, 2012, Defendants filed a motion to dismiss for failure to exhaust administrative remedies. (ECF No. 25.) Plaintiff filed an opposition on June 4, 2012, and Defendants filed a reply on June 11, 2012. (ECF Nos. 26, 27.)
In light of the decision in Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012), Plaintiff was provided with notice of the requirements for opposing a motion to dismiss on July 12, 2012, and granted thirty days in which to withdraw his opposition and file an amended opposition. (ECF Nos. 28, 29.) On July 23, 2012, Plaintiff filed a notice stating that he would stand on his previously filed opposition. (ECF No. 30.)
II. Complaint Allegations
Plaintiff alleges that on November 9, 2007, while being moved to a different facility, Defendants Masiel, Aguirre, and Hernandez confiscated his pillows that had been medically prescribed due to a neck surgery. When Plaintiff told the Defendants that he had a medical chrono for the pillows, Defendant Maciel stated that the pillows were not leaving his unit because Plaintiff filed staff complaints. Defendant Hernandez told Plaintiff to file a staff complaint ;and Defendant Aguirre just stood there shaking his head in agreement.
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). 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 relevant to this action, 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.
Defendants contend that, although Plaintiff filed an inmate appeal regarding the incident alleged in the complaint, he did not pursue the appeal beyond the first level of review, and therefore failed to exhaust his administrative remedies. (Memorandum of Points and Authorities in Support of Motion to Dismiss 4, ECF No. 25-1.) Plaintiff opposes the motion on the ground that he received the relief he was requesting when his appeal was granted at the first level; and his appeal was exhausted. (Opp. 7, ECF No. 26.) Defendants reply that Plaintiff's appeal was only partially granted as Plaintiff did not receive the monetary relief he was seeking. (Reply to Plaintiff's Opposition 2, ECF No. 27.) Additionally, Defendants argue that even ...