The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS (1) DENYING DEFENDANT'S MOTION TO DISMISS ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (2) DENYING PLAINTIFF'S MOTION NOT TO EXTEND TIME FOR DEFENDANT'S RESPONSIVE PLEADING (ECF Nos. 38, 43) OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS
On February 1, 2010, Plaintiff Claudell Earl Martin, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The action proceeds against Defendant Loadholt for retaliation as alleged in the First Amended Complaint. (ECF No. 33.)
On January 18, 2013, Defendant filed a Motion to Dismiss the First Amendment claim pursuant to Fed. R. Civ. P. 12(b) on grounds Plaintiff failed to exhaust his administrative remedies. (ECF No. 38.) Therein Defendant notified Plaintiff of his rights, obligations and methods for opposing the Motion to Dismiss pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). Plaintiff filed Opposition to the Motion to Dismiss on February 13, 2013. (ECF No. 42.) Defendant filed a Reply to the Opposition on February 19, 2013. (ECF No. 44.)
On February 13, 2013, Plaintiff also filed a Motion to Not Extend Time for Defendant's Rule 12(b) responsive pleading. (ECF No. 43.) Defendant has not filed any opposition to this Motion and the time for doing so has passed.
These Motions are now before the Court.
II. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff alleges as follows in his First Amended Complaint: While an inmate at Corcoran State Prison ("CSP"), Planitiff required prescription cholesterol medication. On May 6, 2008, Plaintiff filed a prison grievance against Defendant, a CSP medical staff employee,*fn1 complaining Defendant was unprofessional and disrespectful in responding to Plaintiff's concern that his cholesterol medication had been changed without his knowledge. Defendant became irritated when she noticed the grievance in Plaintiff's medical file. Defendant retaliated for the grievance by requiring that Plaintiff pick-up his daily cholesterol medication at the pill-window*fn2 instead of keeping it on his person as he had been allowed to do before the grievance. Plaintiff grieved the retaliatory pill-window restriction. His appeal was granted in October 2008 and he was then allowed to keep his cholesterol medication on his person again.
Plaintiff seeks monetary damages and declaratory relief.
The Prison Litigation Reform Act ("PLRA") stipulates, "No 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). Therefore, prisoners are required to exhaust all available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007). The Supreme Court held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the exhaustion of remedies is required, regardless of the relief sought by the prisoner, as long as the administrative process can provide some sort of relief on the prisoner's complaint. Booth v. Churner, 532 U.S. 731, 741 (2001). "[P]roper exhaustion of administrative remedies is necessary," and "demands compliance with an agency's deadlines and other critical procedural rules . . . ." Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
The California Department of Corrections and Rehabilitation ("CDCR") has an administrative grievance system for prisoner complaints; the process is initiated by submitting a CDCR Form 602. Cal. Code Regs. tit. 15, §§ 3084.1, 3084.2(a). During the time relevant to this case, four levels of appeal existed: an informal level, a first formal level, a second formal level, and a third formal level, also known as the "Director's Level"; each successive appeal had to be submitted within fifteen working days of the event being appealed. Id. at §§ 3084.5, 3084.6(c).
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 215; Wyatt, 315 F.3d at 1119. 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). 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.
B. Effect of Motion to Dismiss on Responsive Pleading
"Unless the court sets a different time, serving a motion under [Rule 12 of the Federal Rules of Civil Procedure] alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within ...