The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1)ADOPTING IN PART AND MODIFYING IN PART MAGISTRATE JUDGE'S REPORT & RECOMMENDATION [Doc. No. 38]; AND (2) GRANTING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST PURSUANT TO FED.R.CIV.P. 12(b) & 42 U.S.C. § 1997e(a) [Doc. No. 18]
This action was first commenced on March 21, 2005 in the Northern District of California by Plaintiff, a prisoner proceeding pro se, who is now incarcerated at High Desert State Prison pursuant to 42 U.S.C. § 1983. (See Orig. Compl. [Doc. No. 1]). District Judge Marilyn Patel determined that the allegations in Plaintiff's Complaint arose from incidents which occurred at the Richard J. Donovan Correctional Facility ("Donovan") and ordered the matter transferred to the Southern District of California.
On October 23, 2005, District Judge Larry Alan Burns granted Plaintiff leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) but sua sponte dismissed his Complaint for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Oct. 23, 2005 Order at 7-8. Plaintiff was permitted leave to file an Amended Complaint and he was cautioned that any Defendants not named and any claims not re-alleged in the Amended Complaint would be deemed to have been waived. Id. (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
Plaintiff filed his First Amended Complaint ("FAC") on November 14, 2005 [Doc. No. 2]. In his First Amended Complaint, Plaintiff named only Defendants Garza, Maciel, Maroki, Ceballos, Guzman and Hagman. Because Plaintiff did not re-allege any claims against Defendants Arguilez, Panichello, Ramirez, Munoz, Watts, Lorocco, Giron, and Magno, these Defendants are terminated from this action. King, 814 F.2d at 565.
Currently pending before the Court is Defendants Garza, Maciel, Maroki, Ceballos and Guzman's FED.R.CIV.P. 12(b) Motion to Dismiss Plaintiff's First Amended Complaint [Doc. No. 18].*fn1 These Defendants seek dismissal on exhaustion grounds, claiming specifically that Plaintiff was required to exhaust prior to suit and that his completion of the administrative process during the course of litigation is insufficient to satisfy 42 U.S.C. § 1997e(a). The Motion was referred to Magistrate Judge Ruben B. Brooks for disposition by way of a Report and Recommendation ("R&R") pursuant to 28 U.S.C. § 636(c) and S. D. CAL. CIVLR 72.3. On October 23, 2006, Judge Brooks issued an R&R, recommending that this Court grant Defendants Motion to Dismiss. Plaintiff filed Objections [Doc. No. 39], and Defendants filed a Reply [Doc. No. 40].
28 U.S.C. § 636 provides that "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). After careful review of the R&R, Plaintiff's Objections, Defendants' Reply, all papers filed in support of and in opposition to Defendant's Motion, this Court adopts in part and modifies in part, the findings, conclusions and recommendations set forth in Magistrate Judge Brook's R&R.
A. 42 U.S.C. § 1997e(a)'s Exhaustion Requirement
Before the Prison Litigation Reform Act ("PLRA") was enacted, prisoners challenging conditions of confinement under 42 U.S.C. § 1983 were not generally required to exhaust administrative remedies prior to filing suit in district court. See Patsy v. Bd. of Regents, 457 U.S. 496, 500-01 (1982); Porter v. Nussle, 534 U.S. 516, 517-518 (2002). The PLRA amended 42 U.S.C. § 1997e(a), however, to provide that "no action shall be brought with respect to prison conditions under section 1983 of this title, or any 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); Porter, 534 U.S. at 517; Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2002). The Supreme Court has called "protecting administrative agency authority and promoting judicial efficiency" the "twin purposes" of administrative exhaustion. McCarthy v. Madigan, 503 U.S. 140, 145 (1992); see also Porter, 534 U.S. at 517 (noting that corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate and thereby obviate the need for litigation, help to filter out frivolous claims and provide the court with an administrative record that clarifies the contours of the controversy) (citing Booth, 532 U.S. at 737).
In this case, Defendants' have filed and specifically request that the Court rule on its motion to dismiss Plaintiff's First Amended Complaint under the "non-enumerated" provisions of FED.R.CIV.P. 12(b). The Ninth Circuit has held that "failure to exhaust non-judicial remedies is a matter of abatement" not going to the merits of the case and is properly raised pursuant to a motion to dismiss, including a non-enumerated motion under FED.R.CIV.P. 12(b). See Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988). "Non-enumerated" Rule 12(b) motions are governed by the general motion provisions in the federal rules, including FED.R.CIV.P. 43(e), which permits the hearing of motions based on facts outside the record on affidavits submitted by the parties. Id.; 5A Wright & Miller, FEDERAL PRACTICE & PROCEDURE, § 1360 (2d ed. 1990).
The Supreme Court has recently held that under the PLRA, 42 U.S.C. § 1997e(a)'s exhaustion requirement is an affirmative defense. See Jones v. Bock, __ S.Ct. __, 2007 WL 135890 at *11 (Jan 22, 2007) (No. 05-7058); see also Wyatt, 315 F.3d at 1119. In Wyatt, the court stated that district courts should look to documentation beyond the pleadings in deciding motions to dismiss for failure to exhaust non-judicial remedies. Id. (citing Ritza, 837 F.2d at 369).
B. Excessive Force claims
Defendants brought a motion pursuant to FED.R.CIV.P. 12(b) arguing that Plaintiff filed a grievance relating to the excessive force claims which was rejected by prison officials as untimely. Accordingly, pursuant to the Supreme Court's recent decision in Woodford v. Ngo, __ U.S. __, 126 S.Ct. 2378, 2385 (2006), Magistrate Judge Brooks found that Plaintiff did not properly exhaust his administrative remedies. The record before the Court indicates that Plaintiff's administrative grievance regarding the alleged use of excessive force was submitted seven months after the incident allegedly occurred. ...