Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 21, 2013, the magistrate judge issued findings and recommendations recommending that defendants' motion to dismiss be denied. Defendants have filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. The court finds as follows.
Defendants correctly point out that the magistrate judge, in excusing plaintiff's failure to exhaust administrative remedies and denying defendants' motion to dismiss, relied, in part, on a section of the California Code of Regulations which was not in effect at the relevant time period. Specifically, the magistrate judge cited section 3084.2(a)(3) and (4) of Title 15 of the California Code of Regulations, which went into effect January 28, 2011, while plaintiff's attempts to exhaust administrative remedies on his claims in this case occurred between February 14 and June 14, 2010. Thus, the magistrate judge's finding that the appeals coordinator should not have told Chavez that he "must" identify the staff member involved in his staff complaint because that instruction was contrary to language in section 3084.2 is erroneous. However, for the following reasons, the court nevertheless agrees that plaintiff's exhaustion should be excused in this case.
The court observes the following timeline of events in this case relative to plaintiff's attempts to exhaust administrative remedies. On April 4, 2010, plaintiff filed an inmate appeal, describing his problem as follows:
On 2-14-10 I was battered by I/M Barrera V-34570 at 0600 hrs with a weapon causing serious injury while being let out for my job assignment. I/M Barrera who does not work was also let out of his cell by First Watch C/O in Building 12 per postal orders. See C.D.C.R. 1140 dated 2/26/10 by Lt. Bickham Exhibit (A)[.] Due to the negligence of first watch C/O in Building 12 per postal order I have suffered the loss of my left eye Exhibit (B)! On 2-23-10 I asked Lt. Bickham via I/M request for the incident report of said date and was returned (6) six pages of paper that I had to sign for to make copies on a trust account withdraw slip to show sustained injuries, as Exhibit (B) which denied due process per Title 15 Section 3286.
(Dkt. No. 26 at 4.) The action requested was as follows:
That I be compensated for the loss of left eye due to the negligence of C/O on first watch Building 12 date 2/14/10 who let out I/M Barrera V-34570 to assault me while performing my work duties. Per early worker release roster, and daily movement sheet that was provided to first watch C/O on Building 12 who negligently let out I/M Barrera, and reimbursed for Lt. Bickhams copies I paid for that are provide*fn1 (Dkt. No. 26 at 4.)
On February 9, 2010, plaintiff's appeal dated April 4, 2010 was screened out "due to untimely filing." (Dkt. No. 18-1 at 5.) Plaintiff submitted another appeal dated April 13, 2010 in which he complained of "professional negligence of appeals coordinator at C.S.P. Solano for rejecting" his April 4, 2010 appeal for untimeliness, "where [the] negligent failure of Lt. Bickham per CCR 3286 refused to incident issue incident report...." (Dkt. No. 26 at 5.) Plaintiff requested that his "602 dated 4/4/10 be answered and awarded relief." (Id.)
On April 20, 2010, the appeals coordinator sent a response to plaintiff that his appeal dated April 13, 2010 was being screened out as "duplicate" to his April 4, 2010 appeal. (Dkt. No. 18-1 at 5.) On May 17, 2010, plaintiff wrote a letter to the appeals coordinator asking the appeals coordinator to process his staff complaint appeal "as being timely filed." (Dkt. No. 26 at 7.) Plaintiff stated, in relevant part, that he should be allowed to file his "staff complaint" for various listed reasons. (Dkt. No. 26 at 6.) The subject of plaintiff's letter to the appeals coordinator reads "Re: Screen-out of staff complaint on February 14, 2010." (Id. (emphasis added).) Subsequently, plaintiff was notified on June 14, 2010 of the following:
Your CDC 602 dated 4/4/10 has been accepted for further review. However, clarification is needed. If you are filing a staff complaint, you must provide specific name of staff involved in the 2/14/10 incident on first watch, in Building 12. If you are not filing a staff complaint, please indicate that attached CDC 602 is not filed as a staff complaint issue.
Plaintiff did not respond to this screen-out of his appeal. Defendants argue that plaintiff's failure to respond to this request for clarification constitutes a failure to exhaust. Plaintiff alleges that he was prevented from exhausting by prison officials because he was told that he "must" provide the name of the staff member involved in order to make his staff complaint, yet his requests for the incident report which would reflect the name of the staff member involved went unanswered by prison staff. (Dkt. No. 26 at 2.)
If the screen-out was proper, then it appears that plaintiff's failure to respond to the request for more information constitutes a failure to exhaust available administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) ("Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules...."). If, however, plaintiff's appeal was "improperly" screened out and his administrative remedies rendered effectively unavailable, his exhaustion should be excused. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) ("Consistent... with our decision in Nunez, we hold that... [i]f prison officials screen out ...