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September 6, 2005.

Deputy BUTTI; et al., Defendants.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge



Hamit Reza Salahvarzi, currently incarcerated at a detention facility in San Diego, filed this pro se civil rights action under 42 U.S.C. § 1983, concerning incidents that occurred while he was incarcerated at the Martinez Detention Facility in Contra Costa County. Defendants have moved to dismiss the complaint, arguing that plaintiff failed to exhaust administrative remedies before filing this action. Plaintiff has opposed the motion. The court will grant the motion and dismiss the complaint for failure to exhaust administrative remedies. The court will not reach the defendants' alternative motion for summary judgment because the failure to exhaust requires dismissal of the complaint, regardless of the merits of plaintiff's claims or the qualified immunity defense.

  BACKGROUND A. Procedural History

  Salahvarzi's complaint concerned incidents that occurred in July 2003, when he was incarcerated in the Contra Costa County Jail. He alleged that he had been subjected to excessive force, deliberate indifference to his safety, and deliberate indifference to his medical needs by various members of the Contra Costa County Sheriff's Department. The court found cognizable Salahvarzi's claims under 42 U.S.C. § 1983 for violations of his rights under the Eighth Amendment to the U.S. Constitution.

  Defendants have moved to dismiss, for summary judgment, or for summary adjudication of claims under Federal Rules of Civil Procedure 12(b) and 56. Salahvarzi has opposed the motion.

  B. Exhaustion Facts

  The administrative remedy process available at the Contra Costa County Detention Facility ("the jail") is described in sections 3-6 of the Detention Division Policies and Procedures Manual of the Contra Costa County Office of the Sheriff (the "manual"). See Lawrence Decl., ¶ 5 and Exh. C. Inmates receive information on the manual when they are in the jail and copies of the manual are available in the jail modules for inmates to consult and review.

  The administrative remedy process at the jail involves an initial grievance and an appeal to the facility commander if the inmate is dissatisfied with the response to the grievance. At the first level, if the sergeant/supervisor is unable to resolve the grievance at that level, he will refer the request form to the operations sergeant who will give a written response to the inmate. Manual, Procedure 3. The inmate may appeal to the facility commander. Manual, Procedure 4 & 5.

  Salahvarzi filed several inmate grievances concerning the use of force on him on medical care he needed and an attack by other inmates in early July 2003. There is no evidence, however, that he appealed from the decisions on any of these grievances. Salahvarzi also does not assert that he did file any appeal. DISCUSSION

  A. The Procedural Mechanism For Raising Exhaustion Problems

  A prisoner's failure to exhaust administrative remedies is a matter in abatement. 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). In Wyatt v. Terhune, 315 F.3d at 1119, the Ninth Circuit explained that the proper way to establish nonexhaustion was by a unenumerated Rule 12(b) motion rather than in a motion for summary judgment.*fn1 This was so because the "failure to exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement." Id. The summary judgment procedure is a decision on the merits while a dismissal for failure to exhaust is not on the merits. "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 1119-20, citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988). Ritza explained that "[t]he distinction between summary judgment and dismissal for matters in abatement bears on the district court's authority to resolve factual disputes and thus affects the standard of review to be applied by this court." Id. at 369. The court can decide factual issues in a jurisdictional or related type of motion because there is no right to a jury trial as to that portion of the case, unlike the merits of the case (where there is a right to a jury trial). See id. Wyatt and Ritza allow this court to resolve factual disputes, but only with regard to the exhaustion issue.

  B. Exhaustion

  "No 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). The Contra Costa County Sheriff's Department provides an administrative appeals process. An inmate may file a grievance regarding medical care, conditions of confinement and various other topics. See Manual, § 3-6. An inmate must ...

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