Opinion
NO. C03-2213 TEH
March 9, 2004
ORDER DENYING IN PART AND STAYING IN PART DEFENDANTS' MOTION TO DISMISS
This matter comes before the Court on Defendants' motion to dismiss. After carefully reviewing the parties' papers, the Court finds oral argument to be unnecessary. For the reasons discussed below, the Court now DENIES IN PART and STAYS IN PART Defendants' motion.
BACKGROUND
On May 13, 2003, Plaintiff Eddie Zheng filed a pro se prisoner's complaint alleging civil rights violations under 42 U.S.C. § 1983. On August 13, 2003, this Court reviewed the complaint and found that:
Counsel entered an appearance on Zheng's behalf on November 19, 2003.
Plaintiff's complaint states claims for relief against defendants Woodford, Neinhuis, Wooten, and Bracy for retaliation and against Woodford and Wooten for . . . due process violations in connection with plaintiff's placement and retention in administrative segregation. The disciplinary due process claim and the claim concerning the improperly processed administrative appeal are dismissed without leave to amend. The denial of access to the courts claim is dismissed with leave to amend.
Order of Dismissal with Leave to Amend (hereinafter "Aug. 2003 Order") at 7-8. Zheng filed an amendment to his complaint regarding his access to the courts claim on September 9, 2003. On November 7, 2003, the Court found that Zheng's amendment did not cure the deficiencies in the original complaint and therefore dismissed the access to courts claim without leave to amend. Scheduling Order at 1-2.
Thus, the only remaining claims are Zheng's retaliation claim and his due process claim concerning his placement and retention in administrative segregation. First, Zheng alleges that he has been unlawfully retaliated against for exercising his right to free speech by signing a proposal regarding the San Quentin College Program, filing a writ in state court, and not obtaining permission before submitting an article for publication and attempting to create a website. As the Court summarized in a previous order, Zheng alleges the following retaliatory acts by Defendants Woodford, Neinhuis, Bracy, and Wooten:
At the time of the alleged incidents, Zheng was incarcerated at San Quentin Prison, where Defendant Woodford was the warden, Defendant Wooten was an associate warden, Defendant Neinhuis was a correctional lieutenant, and Defendant Bracy was a supervisor of correctional education. Zheng has since been transferred to California State Prison, Solano.
[Zheng] was investigated, his cell was searched and materials confiscated therefrom, he received a chrono on June 5, 2002, banning him from programs, he was informed he would be transferred to another prison, he received a rule violation report in August 2002 for not obtaining permission before submitting an article for publication and attempting to have a website created, and he was put in administrative segregation starting on June 13, 2002.
Aug. 2003 Order at 1-2. Zheng's due process claim rests on his contention that Defendants Woodford and Wooten violated his due process rights by placing him in administrative segregation without sufficient evidence and by failing to complete required periodic reviews of that placement. Id. at 2.
Defendants now move to dismiss both Zheng's retaliation and due process claims on two separate grounds. First, Defendants contend that, as to the retaliation claims against Defendants Wooten and Bracy and the due process claims in their entirety, the complaint fails to state a claim for which relief can be granted. Second, Defendants contend that the complaint must be dismissed because Zheng failed to exhaust his administrative remedies.
DISCUSSION
Failure to State a Claim
Defendants admit that Zheng has adequately stated a retaliation claim against Defendants Woodford and Neinhuis. However, Defendants argue that Zheng's remaining claims must be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief may be granted. A court should not grant dismissal under this rule "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When reviewing the complaint on a motion to dismiss, the court assumes all alleged facts as true and also construes pro se pleadings liberally. Balistreri v. Paciflca Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Here, the Court has already reviewed the complaint and found that Zheng adequately stated a claim for relief on the challenged claims. The Court is required to screen prisoner complaints under 28 U.S.C. § 1915A, which provides, in relevant part, that the Court must dismiss any portion of the complaint that "fails to state a claim upon which relief may be granted." Following the Court's initial screening, the Court concluded that "the complaint states a § 1983 claim for relief for retaliation against defendants Woodford, Neinhuis, Bracy, and Wooten in that the[y] allegedly took adverse acts to retaliate for Zheng signing a proposal, filing a petition for a writ in state court, and not obtaining permission before submitting an article for publication and attempting to create a website." Aug. 2003 Order at 3. The Court further concluded that "the allegations of the complaint state a cognizable claim against defendants Woodford and Wooten for a due process violation for causing Zheng's placement in ad[ministrative] seg[regation] (apparently without sufficient evidence to support a decision for administrative segregation placement) and the failure to give adequate periodic reviews of that placement." Id. at 6.
Thus, this portion of Defendants' motion is an improper motion for reconsideration that can be denied on procedural grounds alone. See Civ. L.R. 7-9 (local rule governing motions for reconsideration). However, the Court also denies this portion of the motion on the merits. The Court has carefully reviewed Defendants' arguments and finds that, while the complaint could have included more specific allegations, Defendants have not shown that Zheng has failed to state a claim within the meaning of Rule 12(b)(6). In particular, Defendants have not demonstrated that Zheng can prove no set of facts that may entitle him to relief on these claims. As a result, the Court DENIES Defendants' motion to dismiss for failure to state a claim.
Exhaustion
Defendants next contend that Zheng has failed to exhaust his administrative remedies on all of his claims and, therefore, that the entire complaint must be dismissed. The Prison Litigation Reform Act of 1995 requires prisoners to exhaust their administrative remedies before bringing suit under 42 U.S.C. § 1983 or any other federal law. 42 U.S.C. § 1997e(a). In California, this means that a prisoner must go through the following levels of administrative appeal before filing suit in federal court: (1) informal resolution (waived under certain conditions); (2) formal written appeal on a California Department of Corrections ("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 CDC. Cal. Code Regs. tit. 15, § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D. Cal. 1997). "If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2002).
Defendants bear the burden of proving lack of exhaustion as an affirmative defense. Id. at 1119. In evaluating exhaustion on a motion to dismiss, "the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20. However, if the district court looks beyond the record in "a procedure closely analogous to summary judgment," then the court must assure that the prisoner "has fair notice of his opportunity to develop a record." Id. at 1120 n. 14. In accordance with this rule, Zheng requests that this motion be stayed for further discovery if the Court believes any of Defendants' exhaustion arguments have merit. Because, as discussed below, the Court finds merit to some of Defendants' arguments, the Court grants Zheng's request for a stay.
Zheng first argues that he exhausted his retaliation claims with Appeal Nos. 02-2047 and 02-1741. Defendants inexplicably failed to respond to Zheng's second argument, regarding Appeal No. 02-1741. Upon review of the record, the Court finds that Appeal No. 02-1741 exhausted Zheng's retaliation claim, but only with respect to the search of his cell. In that appeal, Zheng alleged that, "The search [of my cell] was not random. Lt. Neinhuis had my cell searched because I signed a proposal about academic freedom and free speech in the college program. None of this is illegal. In fact, it is constitutional[ly] protected." Ex. A to Cattermole Decl. at MTD-008. Defendants do not argue that Appeal No. 02-1741 was not pursued to the highest level on any claim, and the Court therefore DENIES the motion to dismiss Zheng's retaliation claim based on the search of his cell.
However, as Defendants argue — and Zheng does not dispute — although Zheng raised a retaliation claim (among other claims) regarding his placement in administrative segregation and pending transfer in Appeal No. 02-2047, that claim was not addressed on the merits at any level of administrative appeal. Id. at MTD-047, MTD-054, MTD-056. Instead, both the second level and director level opinions instructed Zheng to file a separate appeal on the retaliation issue. Id. at MTD-054, MTD-056. It is undisputed that Zheng did not file any such appeal, and he therefore has failed to give the CDC a fair opportunity to address his retaliation claims on the merits. Zheng argues that he "attempted to raise the issue of retaliation all the way up to the highest level, Director Level Review," Opp'n at 15, but Zheng's failure to file a separate appeal belies this point. The administrative appeals did not reject Zheng's retaliation claim on the merits, nor did they reject it procedurally by, for example, finding the claim to be time-barred. The CDC informed Zheng of the action he needed to take — filing a separate appeal — to have his retaliation claim heard, but Zheng failed to do so. Thus, the Court finds merit to Defendants' argument that Appeal No. 02-2047 does not exhaust Zheng's retaliation claims.
Given this conclusion, the Court need not address Defendants' arguments regarding the exhaustion of Zheng's retaliation claims against Defendant Bracy, who was not named in Appeal No. 02-2047.
Zheng argues that his due process claims were exhausted by Appeal Nos. 02-1870 and 02-2047. The Court has reviewed the record and agrees with Zheng that Appeal No. 02-1870 exhausted his due process claim with respect to his initial placement in administrative segregation. Indeed, Defendants appear to concede this point in their reply. Accordingly, the Court DENIES Defendants' motion on this issue. However, as Defendants point out, Appeal No. 02-1870 does not raise a due process claim regarding inadequate periodic reviews. Nor does it appear from the record that Appeal No. 02-2047 raised this claim. Thus, it appears that Zheng did not exhaust his due process claim regarding inadequate periodic reviews.
In their reply, Defendants inexplicably failed to address Appeal No. 02-2047 with respect to Zheng's due process claim, but the Court has independently reviewed the record.
Although Zheng's partial non-exhaustion is reasonably clear from the record, the Court, out of an abundance of caution, grants Zheng's request staying a final decision on this issue pending further discovery. Because the Court has looked outside the pleadings, the Court agrees that Zheng "should be given a fair opportunity to seek evidence and relevant records to refute this affirmative defense." Opp'n at 18. To deny Zheng that opportunity would violate Ninth Circuit precedent requiring that a prisoner be given "fair notice of his opportunity to develop a record." Wyatt, 315 F.3d at 1120 n. 14.
As a result of the Court's decision to stay a final decision on exhaustion, the Court need not address the parties' dispute over whether a partially exhausted complaint must be dismissed in its entirety, or whether the Court should dismiss only the non-exhausted claims and allow Zheng to proceed on his exhausted claims. If necessary, the Court will address the complete exhaustion issue after Zheng has developed a full record.
CONCLUSION
In short, for the reasons discussed above, the Court DENIES Defendants' motion to dismiss for failure to state a claim and DENIES IN PART and STAYS IN PART Defendants' motion to dismiss for failure to exhaust administrative remedies. The motion is DENIED with respect to Zheng's retaliation claim based on the search of his cell and with respect to his due process claim regarding his initial placement in administrative segregation. The remainder of the motion is STAYED so that Zheng has a fair opportunity to develop a record to rebut Defendants' affirmative defense.
The parties shall meet and confer prior to the scheduled March 15, 2004 case management conference, at which time they should be prepared to present to the Court an agreed upon deadline for discovery on the exhaustion issue. The parties should also be prepared to present an agreed upon briefing schedule to the Court. The Court currently contemplates allowing Zheng to file one supplemental brief, to which Defendants would have the opportunity to respond, but the Court will consider any alternate proposals presented by the parties.