The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff, a state prisoner, proceeds pro se and in forma puaperis on his complaint for relief filed pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he was placed in administrative segregation at High Desert State Prison for 24 months solely because of his racial classification as a Northern Hispanic. Plaintiff seeks money damages as well as "a law against race based lockdowns . . . ."
Defendant has moved to dismiss the complaint, for failure to exhaust and for failure to state a claim upon which relief can be granted. Plaintiff opposes the motion. For the reasons given below, the undersigned recommends that defendant's motion to dismiss the complaint for failure to exhaust be granted, and that this action be dismissed with prejudice.
Plaintiff was transferred to High Desert State Prison ("HDSP") on August 22, 2009. See Doc. No. 1 at 3. Defendant Mike McDonald was the warden at HDSP. See Doc. No. 1 at 2. Upon arrival at HDSP, plaintiff was placed on lockdown because of his racial classification as a Northern Hispanic. Id. Plaintiff remained on lockdown for twenty-four months. See id. at 5-6.
Plaintiff claims that during this time
I continued to file grievances and sign on group grievances with other inmates and was always denied! I signed multiple unlock chronos and told as well as signed multiple papers stating I had no problems with any inmates I had no knowledge of any problems with any inmates. And I would come out and program respectfully with no problems if afforded the opportunity. Yet I was never allowed to program. . . .
I could not step out of my cell without shackles and my hands cuffed behind my back. If I wanted to take a shower my hands would be cuffed behind my back I would be escorted to the shower and locked in the shower. For 24 months I was either in restraints or locked in a confined space every minute of every day no fresh air no outdoor exercise no phone no contact visits. . . .
According to plaintiff, he sent out his only copies of his grievances to his family along with a lawsuit. Id. at 7. He claims that after he turned the lawsuit into the mailroom, it was never seen again. Id.
Defendant's Motion to Dismiss
Defendant McDonald moves to dismiss the complaint, arguing that (1) plaintiff has failed to exhaust his administrative remedies, as he is required to do under 42 U.S.C. § 1997e(a), and (2) plaintiff fails to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).
Relevant Authority Congress "placed a series of controls on prisoner suits, constraints designed to prevent sportive filings in federal court." Skinner v. Switzer, __ U.S. __, 131 S.Ct. 1289, 1299 (2011). One of these constraints is the mandatory exhaustion of the correctional facilities' administrative remedies. See 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.").
Exhaustion serves two purposes. Woodford v. Ngo, 548 U.S. 81, 89 (2006). First, exhaustion protects administrative agency authority. Exhaustion gives an agency an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court, and it discourages disregard of the agency's procedures. Second, exhaustion promotes efficiency. Claims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court. Id. (internal quotation marks, alteration, and citations omitted).
The Prison Litigation Reform Act of 1995 (PLRA) mandates that "[n]o action shall be brought with respect to prison conditions under section 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) (emphasis added). Although "the PLRA's exhaustion requirement applies to all inmate suits about prison life," Porter v. Nussle, 534 U.S. 516, 532 (2002), the requirement for exhaustion under the PLRA is not absolute. See Albino v. Baca, 697 F.3d 1023, 1030-31 (9th Cir. 2012). As explicitly stated in the PLRA, "[t]he PLRA requires that an inmate exhaust only those administrative remedies 'as are available.'" Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (quoting 42 U.S.C. § 1997e(a)); see also Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) ("Remedies that rational inmates cannot be expected to use are not capable of accomplishing their purposes and so are not available."). "We have recognized that the PLRA therefore does not require exhaustion when circumstances render administrative remedies 'effectively unavailable.'" Sapp, 623 F.3d at 822 (citing Nunez, 591 F.3d at 1226); accord Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) ("The obligation to exhaust 'available' remedies persists as long as some remedy remains 'available.' Once that is no longer the case, then there are no 'remedies . . . available,' and the prisoner need not further pursue the grievance." (alteration in original)).
Exhaustion, under the PLRA, is an affirmative defense. Jones, 549 U.S. at 216. Because exhaustion under the PLRA is an affirmative defense, "[t]he burden of establishing nonexhaustion therefore falls on defendants." Wyatt, 315 F.3d 1108, 1112 (9th Cir. 2003); accord Brown, 422 F.3d at 936 ("[D]efendants have the burden of raising and proving the absence of exhaustion.") (quoting Wyatt, 315 F.3d at 1119) (internal quotation marks omitted). Once the defense meets its burden, the burden shifts to the plaintiff to show that the administrative remedies were unavailable. See Albino, 697 F.3d at 1030-31; Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 5 (9th Cir. 1996).
A defendant's burden of establishing an inmate's failure to exhaust is very low. See Albino, 697 F.3d at 1031. A defendant need only show the existence of remedies that the plaintiff did not use. Id. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process. Id. at 1032.
The relevant regulations in effect in 2010 and 2011 required that an inmate present his or her allegations initially at a first and second level of appeal. Cal. Code Regs. tit. 15, § 3084.7(a)-(b). If dissatisfied, the inmate was generally required to appeal to a third-level of appeal. Id. at § 3084.7(c). A decision at the third level constituted the decision of the Secretary of the California Department of Corrections and Rehabilitation ("CDCR") and generally exhausts administrative remedies. Id. However, an appeal could be screened out and rejected or cancelled at any level if it failed to comply with Title 15's requirements. See Cal. Code Regs. tit. 15, §§ 3084.6(b)-(c). For example, CDCR's regulations require the inmate to describe the specific issue under appeal, submit one issue per appeal, list all staff members involved, and state all the facts available to the inmate when the appeal was submitted. See Cal. Code Regs. tit. 15, §§ 3084.2(a)(1)-(4). Also, the inmate had to file the appeal timely, within either 15 or 30 days after the alleged incident. See Cal. Code Regs. tit. 15, ...