United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on the Second Amended Complaint filed October 15, 2012, in which plaintiff alleges that officials at California State Prison-Sacramento ("CSP-Sacramento") violated the Eighth Amendment in 2010 by transferring him to a cold-climate prison against doctor's orders. (ECF No. 32 ("SAC").) Before the court is defendants' October 17, 2013 motion to dismiss the SAC for failure to exhaust administrative remedies under Rule 12(b) of the Federal Rules of Civil Procedure. (ECF No. 45.) Plaintiff has opposed the motion (ECF No. 49), and defendants have filed a reply (ECF No. 51). For the reasons set forth below, the undersigned will recommend that defendants' motion to dismiss be granted.
I. Legal Standard
Section 1997(e)(a) of Title 42 of the United States Code provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997(e)(a) (also known as the Prison Litigation Reform Act ("PLRA")). A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune , 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id . at 1119-20. Defendants bear the burden of proving plaintiff's failure to exhaust. Id . at 1119.
The State of California provides its prisoners and parolees the right to appeal administratively "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). At the time of the events giving rise to the present action, California prisoners were required to proceed through four separate levels of appeal to exhaust the administrative appeal process: (1) an informal resolution; (2) first formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the CDCR. See 15 Cal. Code Regs. § 3084.1-3084. 9. A final decision from the Director's level of review satisfies the exhaustion requirement under 42 U.S.C. § 1997e(a). See Lira v. Herrera , 427 F.3d 1164, 1166-67 (9th Cir. 2005); see also Cal. Code Regs. tit. 15, § 3084.7(d)(3) (as amended Dec. 13, 2010).
Defendants carry the burden of establishing non-exhaustion. "A defendant's burden of establishing an inmate's failure to exhaust is very low." Albino v. Baca , 697 F.3d 1023, 1031 (9th Cir. 2012) (citations omitted). In order to meet it, a defendant must show "the existence of remedies that plaintiff did not use" by citing, e.g., "statutes, regulations, and other official directives that explain the scope of the administrative review process." Id . at 1031-1032. Departmental appeals coordinators may reject a prisoner's administrative appeal for a number of reasons, including untimeliness, filing excessive appeals, use of improper language, failure to attach supporting documents, and failure to follow proper procedures. Cal. Code Regs. tit. 15, § 3084.6(b). An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion requirement. Woodford v. Ngo , 548 U.S. 81, 84 (2006).
Once the defense meets its burden, the burden shifts to the plaintiff to show that the grievance procedure was unavailable. Albino , 697 F.3d at 1031. When an inmate's administrative grievance is improperly rejected on procedural grounds, exhaustion may be excused as "effectively unavailable." Sapp v. Kimbrell , 623 F.3d 813, 823 (9th Cir. 2010); see also Nunez v. Duncan , 591 F.3d 1217, 1224-26 (9th Cir. 2010) (warden's mistake rendered prisoner's administrative remedies "effectively unavailable"); Brown v. Valoff , 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to proceed to third level where appeal granted at second level and no further relief was available). However, "an inmate's subjective unawareness of an administrative remedy and a prison's failure to expressly inform the inmate of the remedy are not alone sufficient to excuse exhaustion." Albino , 697 F.3d at 1035. An inmate must "make reasonable, good-faith efforts to discover the appropriate procedure for complaining about prison conditions before unawareness may possibly make a procedure unavailable." Id.
Plaintiff alleges that, at a June 16, 2010 meeting of the Institutional Classification Committee ("ICC") at CSP-Sacramento, defendant committee members Virga and Macomber recommended that plaintiff be transferred to High Desert State Prison ("HDSP"), even though plaintiff informed them that he had a medical chrono stating that a cold climate would exacerbate his knee problems. Plaintiff alleges that he again protested the transfer decision to defendants on September 8, 2010 and September 29, 2010. (SAC at 10-13.)
In a letter dated October 1, 2010, a non-defendant prison official in the Controlled Correspondence Unit replied to a letter by plaintiff, writing in part:
In your correspondence you state:
You have degenerative bone disease due to multiple surgeries on your knees; however, both knees continue to lock up and buckle.
Medical doctors at SAC have recommended you be transferred to the California ...