FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on defendant's motion to dismiss on the grounds that plaintiff failed to exhaust his administrative remedies prior to filing suit as required. Plaintiff has filed an opposition to the motion and defendant has filed a reply.
Plaintiff, a state prisoner at High Desert State Prison ("HDSP") in Susanville, California, is proceeding on an amended complaint against defendant Ruggiero, a Correctional Sergeant at HDSP, for retaliation in violation of the First Amendment. (Doc. No. 11.) In that amended complaint plaintiff alleges as follows. On August 12, 2011, defendant Ruggiero confiscated plaintiff's phone book. (Am. Compl. at 3 ¶ 10(ii).) As his phone book was being confiscated, plaintiff requested a signed property receipt so that he could later file an inmate appeal regarding the incident. (Id. at 3 ¶ 10(iii).) Plaintiff's request caused defendant Ruggiero to become hostile, handcuff plaintiff and escort him to the shower where Ruggiero directed another correctional officer to confiscate the remainder of plaintiff's personal property. (Id. at 3 ¶ 10(iv-vii).) Defendant Ruggiero also told plaintiff that he was going to validate plaintiff as a gang member when he was "done" with him. (Id. at 3 ¶ 10(viii).) While waiting in the shower, plaintiff told D-Yard Facility Captain Chapman, that he "was being retaliated against" by defendant Ruggiero. (Id. at 3 ¶ 10(ix).) When plaintiff was escorted from the shower back to his cell, all of his personal property had been confiscated and no property receipt was given to him. (Id. at 4 ¶ 10(xi).)
B. Plaintiff's Inmate Appeals
Plaintiff filed three CDCR Form 602's following this incident. (Am. Compl. at 6 ¶ 15; see also Pl.'s Opp'n to Def.'s Mot. To Dismiss, Ex. 1.) All three grievances were screened out and rejected by the appeals coordinators at HDSP.*fn1 Plaintiff's first inmate appeal was filed on August 17, 2011, accompanied by a "Rights and Responsibility Statement" which is required when a prisoner is complaining of staff misconduct. (Pl.'s Opp'n, Ex. 1.) This first inmate appeal was rejected by the appeals coordinator by issuance of a 602 Appeal Screening Form dated August 19, 2011, which was accompanied by a "Notification of Rejection of Emergency Appeal." (Pl.'s Opp'n, Ex. 1-2.) That screening form stated that plaintiff's inmate appeal was being rejected because the supporting documents required by California Code of Regulations (CCR), Title 15, § 3084.6(b)(7) were not attached thereto. (Pl.'s Opp'n, Ex. 2.) The screening form directed plaintiff to refile his inmate appeal and attach his "cell search receipt." (Id.) The notification of rejection stated that plaintiff's appeal did not meet the criteria to be considered an emergency appeal. (Pl.'s Opp'n, Ex. 1.)
Plaintiff resubmitted his inmate appeal form on September 7, 2011, noting that despite his attempt to obtain one, he had never received the requested cell search receipt. (Am. Compl. at 6 ¶ 15; see also Pl.'s Opp'n, Ex. 1.) This second inmate appeal was also rejected by the appeals coordinator on the same day it was submitted, with a response stating that it was being returned to plaintiff because "no adverse effect demonstrated. CCR 3084.6(b)(2)". (Pl.'s Opp'n, Ex. 3.) This second screening form directed plaintiff to "submit an I/M Request or Form 22 to IGI requesting [his] legal property." (Id.)
Plaintiff filed his third inmate appeal on September 22, 2011. (Am. Compl. at 6 ¶ 15; see also Pl.'s Opp'n, Ex. 1.) That submission was accompanied by plaintiff's handwritten "Notice of Default," stating that the appeals coordinator had "refused to acknowledge defendant's alleged misconduct." (Am. Compl. at 6 ¶ 15; see also Pl.'s Opp'n, Ex. 5.) This inmate appeal was also rejected the same day it was submitted by the appeals coordinator for the stated reason that "appellant has attached dividers, tabs. CCR 3084.6(b)(12)." (Pl.'s Opp'n, Ex. 4.) In the comment section the screening form again directed plaintiff to "use Form 22 to resolve this issue" and to "remove the two handwritten pages." (Id.)
Plaintiff filed his initial civil complaint with this court on September 28, 2011, within a week after his third inmate appeal was screened out and rejected by the appeals coordinator. (Doc. No. 1.) Plaintiff's first amended complaint was filed on April 16, 2012. (Doc. No. 11.) On April 25, 2012, the court determined that plaintiff's amended complaint appeared to state a cognizable First Amendment retaliation claim against defendant Ruggiero.
(Doc. No. 13.)*fn2 On August 2, 2012, defendant filed the pending motion to dismiss the amended complaint. (Doc. No. 23.)
II. DEFENDANT'S MOTION TO DISMISS
Defendant Ruggiero argues that plaintiff failed to exhaust his administrative remedies prior to bringing this civil action as required. Specifically, he contends that plaintiff's failure to pursue his inmate appeal to the second and third levels of review deprived CDCR's Office of Appeals the opportunity ...