United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He alleges that defendant Kyte denied him due process in proceedings related to a rules violation report that resulted in a loss of good time credits. Plaintiff moves to amend his complaint and to stay these proceedings; defendant moves to dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) and/or for summary judgment for failure to exhaust administrative remedies. For the reasons stated below, plaintiff's motions must be denied and this action must be dismissed.
I. Defendant's Motion to Dismiss and Motion for Summary Judgment
On February 7, 2014, defendant moved to dismiss pursuant to Rule 12(b), on the ground that plaintiff failed to exhaust his administrative remedies prior to filing suit. ECF No. 16. He also moved to dismiss pursuant to Rule 12(b)(6). Id. Plaintiff opposed the motion and defendant filed a reply. ECF Nos. 19, 21. Thereafter, defendant withdrew the unenumerated 12(b) portion of his motion to dismiss, in light of Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), in which the United States Court of Appeals for the Ninth Circuit held that a motion for summary judgment, and not a motion to dismiss, should be filed where evidence extrinsic to the complaint is presented to demonstrate the failure to exhaust. ECF No. 29.
On May 19, 2014, defendant refiled the exhaustion motion as a motion for summary judgment. ECF No. 33. Plaintiff did not respond to the summary judgment motion. Although Local Rule 230(l) provides that a responding party's failure "to file an opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion and may result in the imposition of sanctions" the court will consider plaintiff's arguments presented in his earlier opposition to the previously filed motion to dismiss (ECF No. 19) in resolving the summary judgment motion.
B. Exhaustion under the PLRA
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] until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Prison conditions" subject to the exhaustion requirement have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prison...." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint, but need only provide the level of detail required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case").
Prisoners who file grievances must use a form provided by the California Department of Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline the action requested. The grievance process, as defined by California regulations, has three levels of review to address an inmate's claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, § 3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision, " or third level review, with respect to his issues or claims. Id. § 3084.1(b).
Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be "available, " there must be the "possibility of some relief...." Booth, 532 U.S. at 738. Relying on Booth, the Ninth Circuit has held:
[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. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
Failure to exhaust is "an affirmative defense the defendant must plead and prove." Jones v. Bock, 549 U.S. 199, 204, 216 (2007). To bear this burden:
a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case.... With regard to the latter category of ...