K. JAMEL WALKER, Plaintiff,
CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
SUPPLEMENTAL FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff, a state prisoner currently incarcerated at Mule Creek State Prison, proceeds without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Pending is defendants' partially re-opened motion to dismiss, as applied to two of plaintiff's First Amendment retaliation claims. For the reasons that follow, the undersigned recommends that the motion be granted in part, and denied in part. In addition, this court recommends that plaintiff's request to reinstate his state law claims be denied.
By order filed March 22, 2012, the district judge granted in part, and denied in part, defendants' motion to dismiss (ECF No. 22), resulting in the dismissal without leave to amend of plaintiff's state law claims and federal claims for injunctive and declaratory relief, and in the dismissal with leave to amend of plaintiff's federal damages claims against defendants Ryan, Bourland, Nunez, Anaya, Price, Chavarria, and Rush. (See ECF Nos. 34, 35.) Thereafter, plaintiff filed a First Amended Complaint. (ECF No. 36.)
Subsequently, the Ninth Circuit Court of Appeals held, in Woods v. Carey , 684 F.3d 934 (9th Cir. July 6, 2012), that prisoners proceeding without counsel must be provided contemporaneous notice of the requirements for opposing a motion to dismiss for failure to exhaust administrative remedies, as set forth in Wyatt v. Terhune , 315 F.3d 1108 (9th Cir. 2003). In the instant action, a Wyatt notice was never provided. Therefore, to comply with Woods v. Carey , the court provided plaintiff with the requisite notice, and accorded plaintiff the opportunity to re-open defendants' motion to dismiss, and the court's order thereon, for the limited purpose of re-assessing only those of plaintiff's claims that were dismissed for failure to exhaust administrative remedies. (ECF No. 39.) Plaintiff chose to re-open those matters. (ECF No. 41.)
Accordingly, on December 26, 2012, the district judge vacated his dismissal of two of plaintiff's retaliation claims against defendants Price, Chavarria and Rush, as set forth in plaintiff's original complaint (ECF No. 2), and accorded the parties an opportunity to submit additional briefing and exhibits on those claims (ECF No. 42). Defendants filed a supplemental memorandum (ECF No. 43), which the court considered in tandem with their original motion to dismiss (ECF No. 22). Plaintiff filed a supplemental opposition (ECF No. 44), which the court considered in tandem with his original opposition (ECF No. 30).
III. Motion to Dismiss
A. Legal Standards for Motion to Dismiss
In the Ninth Circuit, motions to dismiss for failure to exhaust administrative remedies are normally brought, as here, pursuant to an "unenumerated Rule 12(b)" motion, Federal Rules of Civil Procedure. See Albino v. Baca , 697 F.3d 1023, 1029 (9th Cir. 2012). Review of an exhaustion motion requires the court to look beyond the pleadings in "a procedure closely analogous to summary judgment." Wyatt v. Terhune, supra , 315 F.3d at 1119 n.14. "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119.
The Prison Litigation Reform Act (PLRA) provides that, "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). Pursuant to this rule, prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. Booth v. Churner , 532 U.S. 731, 741 (2001). Exhaustion requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules, including deadlines. Woodford v. Ngo , 548 U.S. 81 (2006). However, "a prisoner need not press on to exhaust further levels of review once he has received all available' remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available." Brown v. Yaloff , 422 F.3d 926, 935 (9th Cir. 2005).
The PLRA requires that available administrative remedies be exhausted prior to filing suit. McKinney v. Carey , 311 F.3d 1198 (9th Cir. 2002). The exhaustion requirement is not jurisdictional, but an affirmative defense that may be raised by a defendant in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). See Jones v. Bock , 549 U.S. 199, 216 (2007) ("inmates are not required to specially plead or demonstrate exhaustion in their complaints"); see also Wyatt , 315 F.3d at 1117-19 (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119.
When a district court concludes that a prisoner has not exhausted his available administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Wyatt , 315 F.3d at 1120; see also Lira v. Herrera , 427 F.3d 1164, 1170 (9th Cir. 2005) ("mixed" complaints may proceed on exhausted claims). Thus, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones , 549 U.S. at 221.
B. Legal Standards for Stating a First Amendment Retaliation Claim
"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson , 408 F.3d 559, 567-68 (9th Cir. 2005) (fn. and citations omitted). At the pleading stage, the "chilling" requirement is met if the "official's acts would chill or silence a person of ordinary firmness from future First Amendment activities.'" Id. at 568, quoting Mendocino Environmental Center v. Mendocino County , 192 F.3d 1283, 1300 (9th Cir. 1999). However, direct and tangible harm will support a First Amendment retaliation claim even without demonstration of a chilling effect on the further exercise of a prisoner's First Amendment rights. Rhodes, at 568 n.11. "[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm" as a retaliatory adverse action. Brodheim v. Cry , 584 F.3d 1262, 1269 (9th Cir. 2009), citing Rhodes , 408 F.3d at 568, n.11.
The plaintiff need not prove that the alleged retaliatory action, in itself, violated a constitutional right. Pratt v. Rowland , 65 F.3d 802, 806 (1995) (to prevail on a retaliation claim, plaintiff need not "establish an independent constitutional interest" was violated); see also Hines v. Gomez , 108 F.3d 265, 268 (9th Cir. 1997) (upholding jury determination of retaliation based on filing of a false rules violation report); Rizzo v. Dawson , 778 F.2d 527, 531 (transfer of prisoner to a different prison constituted adverse action for purposes of retaliation claim). Rather, the interest asserted in a retaliation claim is the right to be free of conditions that would not have been imposed but for the alleged retaliatory motive. However, not every allegedly adverse action will support a retaliation claim. See, e.g., Huskey v. City of San Jose , 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on "the logical fallacy of post hoc, ergo propter hoc, literally, after this, therefore because of this'") (citation omitted).
Filing administrative grievances and initiating litigation are protected activities, and it is impermissible for prison officials to retaliate against prisoners for engaging in those activities. Rhodes , 408 F.3d at 567-68.
C. Relevant Exhausted Administrative Grievances Plaintiff exhausted seven administrative grievances during the relevant period. (ECF No.
34 at 5.) Of those seven grievances, only two contained allegations relevant to this action, Log No. CAL-05-02249, and Log No. CAL-05-02594. (Id.) The court previously reviewed and summarized each of these grievances, as follows (id. at 5-8 (fns. omitted)):
1. Log No. CAL-05-02249
In Log No. CAL-05-02249, initially submitted on November 9, 2005, plaintiff alleged that defendants Ryan, Nunez, Chavarria, Rush, and Anaya, "entered into a conspiracy and/or were grossly negligent... in prevent[ing] [plaintiff ] from the enjoyment of his constitutional and statutory right to privacy by non-electronically eavesdropping on [plaintiff's] telephone conversations with his attorney, so as to gain an advantage in the ongoing civil rights litigation between [plaintiff] and the defendants... in the matter, Walker v. Gomez, et al." (Dkt. No. 30 at 37, 43.) Plaintiff alleged that "staff in the Litigations Office, " specifically, Litigation Coordinator Nunez, "acting as [an] agent on behalf of the [other] defendants referred to herein, " "contacted K. Rush and D. Anaya and informed them I would be receiving telephone calls from my attorney, and it was permissible to eavesdrop on my attorney calls because they were not confidential." (Id. at 43.) As a result, plaintiff alleged, he was deceived into believing that he "had no choice but to be and to remain in a position and proximity which would permit them to eavesdrop on [plaintiff's] telephone calls with his attorney." (Id.) Plaintiff alleged that the named staff members "breached their legal and ethical duty" to inform plaintiff that he could speak confidentially with his attorney by telephone. (Id.) Plaintiff asserted that, thereafter, when he "attempted to take steps to safeguard his rights, " he was retaliated against in the following ways: (1) that Anaya told plaintiff that he had only two options, to continue having his calls monitored, or to be visited by his attorney; and (2) that plaintiff's telephone calls were reduced from 30 minutes to 15 minutes. (Id. at 44.) Plaintiff concluded (id.):
Although the actions alleged have been ongoing as far back as 2004, the most recent manifestations... consist of K. Rush and/or D. Anaya, non-electronically eavesdropping on my telephone calls with my attorney during the following five (5) dates: 9/13/05, 9/21/05, 10/26/05, 10/27/05, 10/28/05.
Pursuant to these allegations, plaintiff asserted that the named staff members had violated plaintiff's "right to privacy under Art. 1 § 1 of the California Constitution, and Chapter 1.5 (Invasion of Privacy)[, ] § 636 of the California Penal Code, as well as my right to [be] free from retaliation for exercising my State and Federal right of access to the courts." (Dkt. No. 30 at 37.)
This grievance was denied at the First Level, on December 14, 2005, on the ground that the "subject" telephone call, later identified only as plaintiff's October 27, 2005 call, was properly handled because it had not been pre-approved as a "confidential call" under former Section 3282(g)(1) and (2), Title 15, California Code of Regulations. (Dkt. No. 30 at 40.) The First Level decision noted that, "[w]hen the [plaintiff] was done speaking with the judge, his attorney got on the line and began talking with the appellant. The telephone call was not pre-approved...." (Id. at 40.) The grievance was denied at the Second Level and Director's Level for the same reasons (id. at 36, 39), both of which addressed only the October 27, 2005 telephone call, notwithstanding plaintiff's continuing efforts to challenge all "five" of his identified calls, and his assertion that the calls ...