FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION TO DISMISS BE GRANTED ECF No. 25 OBJECTIONS, IF ANY, DUE WITHIN 14 DAYS
DENNIS L. BECK, Magistrate Judge.
Plaintiff Joe Louis Valentine ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's Complaint, filed July 25, 2011, against Defendant J. Yerena for retaliation in violation of the First Amendment. Pending before the Court is Defendant's Motion to Dismiss, filed October 9, 2012, pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure, for Plaintiff's failure to exhaust administrative remedies, and in the alternative, for judgment on the pleadings pursuant to the doctrines of collateral estoppel and res judicata. Def.'s Mot. Dismiss, ECF No. 25. Plaintiff filed an opposition on November 1, 2012. ECF No. 28. On December 10, 2012, Defendant filed his Reply. ECF No. 32. The matter is submitted pursuant to Local Rule 230(l).
II. Summary of Complaint
Plaintiff was incarcerated at Kern Valley State Prison ("KVSP"), where the events giving rise to this action occurred. Plaintiff names as Defendant J. Yerena, an Institution Gang Investigator ("IGI").
Plaintiff alleges the following. On June 27, 2007, Plaintiff was transferred from general population to administrative segregation by prison officials based on Defendant Yerena's allegation of Plaintiff's prison gang involvement. Compl. at 5. Seven independent source items were supposedly used to validate Plaintiff as a member of the Black Guerilla Family ("BGF"). Compl. at 5. The validation was submitted to the Office of Correctional Safety, which approved it. Compl. at 5. Defendant Yerena's recommendation of validation was motivated by retaliation against Plaintiff for fling a 602 inmate grievance/complaint on August 30, 2006 against correctional officer Garcia. Compl. at 5-5A. On September 22, 2006, Plaintiff was placed in administrative segregation ("ad seg") and separated from Garcia. Compl. at 5A. Plaintiff was held in ad seg from September 22, 2006 to December 3, 2006 pending an investigation.
During Plaintiff's time in ad seg, Defendant Yerena informed Plaintiff that he had the ability to validate Plaintiff as a member of disruptive group, but had not done so. Compl. at 5A. Defendant Yerena told Plaintiff that if he continued his complaint, Defendant Yerena would validate him. Compl. at 5A. Plaintiff made it clear that he would not drop the complaint. Compl. at 5A. After Plaintiff was released to general population on December 3, 2006, Defendant Yerena confiscated all of Plaintiff's political writings, pictures, and address lists. Compl. at 5A. Plaintiff contends that the items used to validate him should not have been relied upon as evidence of membership in a disruptive group, as they were indicative of his political beliefs, not disruptive group membership. Compl. at 5B. Defendant Yerena stated to Plaintiff that he did not agree with Plaintiff's political beliefs, which Plaintiff contends is a reference to Plaintiff's political texts, and writings by George Jackson, an alleged founder of BGF. Compl. at 5C-5D. Plaintiff contends that Defendant Yerena's actions were clearly motivated by Plaintiff filing a complaint and his political beliefs. Compl. at 5D.
Plaintiff contends a violation of the First Amendment. Plaintiff requests as relief compensatory and punitive damages, and costs of suit.
III. Exhaustion of Administrative Remedies
A. Legal Standard
Pursuant to the Prison Litigation Reform Act of 1995, "[n]o 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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt, 315 F.3d at 1119. The failure to exhaust nonjudicial 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) (per curiam)). 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. Id. at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
The CDCR has an administrative grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). At the time of the events in question, the process was initiated by submitting a CDC Form 602. Id. § 3084.2(a). Four levels of appeal were involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. §§ 3084.5, 3084.6(c). In order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always require pursuit of an appeal through the Director's Level of Review. What is required to satisfy exhaustion is a fact specific inquiry, and may be dependent upon prison officials' response to the appeal. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (improper reasons for ...