FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The remaining defendants in this action, Carey and Cervantes, move to dismiss. For the following reasons that follow, the motion should be granted.
This action proceeds on the fifth amended complaint filed May 19, 2011. Dckt. No. 73. On November 15, 2011, the court issued a screening order under 28 U.S.C. § 1915A concluding that plaintiff stated two potentially cognizable claims: first, against defendant Carey for retaliating against plaintiff for filing a lawsuit against him by directing defendant Cervantes to ignore plaintiff's inmate appeals, and second, against defendant Cervantes for retaliating against plaintiff for filing inmate appeals. Dckt. No. 76 at 4.
Prior to filing the instant action, plaintiff sued defendant Carey in two other lawsuits, one of which also named defendant Cervantes as a defendant (Woods v. Carey, et al., E.D. Cal. Case No. C 05-1157 MJJ and Woods v. Carey, et al., N.D. Cal. Case No. C 04-1225 LKK GGH). Dckt. No. 97-2, Defs.' Mot. to Dismiss at 3; Dckt. No. 73, Fifth Am. Compl. at 2. At all relevant times, defendant Carey was the warden of California State Prison, Solano ("CSP-Solano") and defendant Cervantes was an appeals coordinator there. Fifth Am. Compl. at 5.
Plaintiff alleges that, in 2002, he submitted an inmate appeal regarding an Institutional Classification Committee hearing, but that defendant Cervantes refused to process it. Fifth Am. Compl. at 5-6. Plaintiff later wrote to defendant Carey complaining that defendant Cervantes was preventing him from using the prison grievance process, but defendant Carey simply forwarded the letter to defendant Cervantes. Id. at 6. According to plaintiff, defendant Carey delegated final authority over appeals to defendant Cervantes. Id. Plaintiff alleges that he submitted many additional appeals regarding a variety of issues, and defendant Cervantes refused to process some of them. Id. at 5-6, 12, 13, 16-18.
Defendants argue that the complaint should be dismissed for failure to exhaust and failure to state a claim.
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions [under section 1983 of this title] until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Prison conditions" subject to the exhaustion requirement have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prison . . . ." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint, but need only provide the level of detail required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case").
Prisoners who file grievances must use a form provided by the California Department of Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline the action requested. The grievance process, as defined by California regulations, has three levels of review to address an inmate's claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, § 3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Id. § 3084.1(b).
Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be "available," there must be the "possibility of some relief . . . ." Booth, 532 U.S. at 738. Relying on Booth, the Ninth Circuit has held:
[A] prisoner need not press on to exhaust further levels of review once he has received all "available" remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.
Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
In the Ninth Circuit, motions to dismiss for failure to exhaust administrative remedies are normally brought under Rule 12(b) of the Federal Rules of Civil Procedure. See Albino v. Baca, ___ F.3d. ___, 2012 U.S. App LEXIS 19871 (9th Cir. Sept. 21, 2012). Nonetheless, it remains well established that credibility of witnesses over material factual disputes cannot be resolved on paper. Thus, when ruling on an exhaustion motion that requires the court to look beyond the pleadings in the context of disputed issues of fact, the court must do so under "a procedure closely analogous to summary judgment." Wyatt v. Terhune, 315 F.3d 1108, 1119, n.14 (9th Cir. 2003). Doing so ensures that a process is followed to test whether disputes over facts pertaining to whether plaintiff actually exhausted available remedies are truly genuine and material and therefore warrant live testimony and a credibility determination, or whether the dispute(s) may be disposed of by unrefuted declarations and exhibits. Therefore, following the suggestion in Wyatt, and to assure that credibility as to disputed issues of material fact are not resolved on paper, the undersigned applies the Rule 56 standards here.*fn1 See Chatman v. Felker, No. Civ. S-06-2912 LKK EFB, 2010 WL 3431806, at *2-3 (E.D. Cal. Aug. 31, 2010).
Failure to exhaust is an affirmative defense in the sense that defendants bear the burden of proving plaintiff did not exhaust available remedies. Wyatt, 315 F.3d at 1119. To discharge this burden: a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case . . . ...