The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND TERMINATING ALL OTHER PENDING MOTIONS (Docket nos. 81, 90, 91, 94, 95, 99, 101, 104, 109, 111, 112, 113, 114, 118, 119)
Plaintiff Dannez W. Hunter, a State prisoner incarcerated at Atascadero State Hospital, filed this civil rights action pursuant to 42 U.S.C. § 1983 against prison officials at San Quentin State Prison (SQSP). In an Order dated February 6, 2004, the Court ordered three claims served on the named Defendants.*fn1 Defendants now move to dismiss the complaint on the ground that Plaintiff has failed to exhaust his administrative remedies or in the alternative for summary judgment. Plaintiff has filed an opposition to Defendants' motion. For the reasons discussed below, the Court grants Defendants' motion to dismiss the complaint.
Because the Court grants Defendants' motion to dismiss on procedural grounds the allegations in the complaint need not be discussed in detail. To summarize, the Court previously found cognizable the following three claims asserted by Plaintiff against prison officials at SQSP:
1. Retaliation claims against Defendants D. Wooten, Dr. Calvo and Correctional Officer Russell A. Sheldon, stemming from the filing of Plaintiff's November 8, 2001, grievance.
2. Excessive force claims against Defendants Dr. J. Mahoney, Lt. R.E. Crayton, Capt. J. Nunez and Lt. A.D. Lee, stemming from a December 6, 2001, forced cell extraction.
3. Forced medication claims against Defendants Dr. J. Mahoney, Dr. Johnson, and Dr. Poston, stemming from a December 6, 2001, administration of psychotropic medication.
Defendants argue in their motion to dismiss that the Court cannot proceed to decide the merits of these claims, however, because Plaintiff has not satisfied the administrative exhaustion requirement. In his opposition Plaintiff concedes that he did not exhaust his claims but argues that he should not have to because prison officials intentionally prevented him from so doing. The Court now considers whether Defendants' evidence is adequate to establish that Plaintiff failed to exhaust administrative remedies with respect to the present claims. See Wyatt, 315 F.3d at 1120.
The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), amended 42 U.S.C. § 1997e to provide that "[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). Nonexhaustion under § 1997e(a) is an affirmative defense -- defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 124 S.Ct. 50 (2003). It should be raised in an unenumerated Rule 12(b) motion rather than in a motion for summary judgment. Id. at 1119. In deciding such a motion 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 not exhausted non-judicial remedies, the proper remedy is dismissal without prejudice. Id. at 1120.
A prisoner's concession to nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies. Id. at 1120. Accordingly, a claim may be dismissed without prejudice if it is clear from the record that the prisoner has conceded that he did not exhaust administrative remedies. See id.
Under 42 U.S.C. § 1997e(a), an action must be dismissed unless the prisoner exhausted his available administrative remedies before he filed suit, even if the prisoner fully exhausts while the suit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular ...