FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42 U.S.C. § 1983. This action proceeds on the June 25, 2007, complaint.*fn1 The matter is now before the court on defendant's November 21, 2007, motion to dismiss on the ground that plaintiff failed to exhaust the available administrative remedies.
In the complaint, plaintiff alleges that K. J. Anderson interfered with plaintiff's transfer to a different prison in retaliation for his refusal to withdraw a grievance against her. On June 30, 2006, plaintiff filed a grievance complaining that defendant Anderson told plaintiff that if plaintiff were to withdraw a grievance, then plaintiff would be transferred to a different prison and that other requests plaintiff had made would be granted. Compl., Ex. A. In the grievance, plaintiff states that since he refused to withdraw the earlier grievance, Anderson interfered with the transfer. Id. It appears from plaintiff's exhibits to the complaint that he submitted classification score sheets, a written statement of the classification committee's action, and other documents in order to support his argument in the grievance. Id. In response to this grievance, prison officials interviewed plaintiff and reviewed records relevant to his allegations. On August 24, 2006, the grievance was denied on the first formal level, and plaintiff was informed in writing that if he was dissatisfied he could proceed to the second formal level of review. Id. Plaintiff did appeal to the second level of review on September 11, 2006, and attached the documents he had submitted with his appeal on the first level of review. Id. Again, prison officials interviewed plaintiff and reviewed his records, and then denied the appeal. Id. The denial included written notice that plaintiff could appeal to the Director's Level of Review. Id. On December 1, 2006, plaintiff filed an appeal on the Director's Level of Review. Id.; see also Def.'s Mot. to Dism., Ex. B. Prison officials screened out the appeal on the ground that plaintiff did not include necessary supporting documentation, and returned the appeals papers to plaintiff. Compl., Ex. B; Def.'s Mot., Ex. B. In particular, a February 14, 2006, letter to plaintiff explained that plaintiff must submit a form "CDC 839, Classification Scoresheet." Compl., Ex. B; Def.'s Mot., Ex. C. This was one of the documents plaintiff had submitted with his first and second level appeals. Compl., Ex. A. In support of the motion, defendant has submitted the declaration of T. Emigh, Assistant Chief of the Inmate Appeals Branch of the California Department of Corrections and Rehabilitation. In that declaration, T. Emigh states that IAB records do not reflect that plaintiff resubmitted his appeal to the Director's Level of Review. Emigh Dec., at ¶ 8.
II. Standards Applicable to This Motion
Defendants seek dismissal under Rule 12(b) of the Federal Rules of Civil Procedure.
While the Ninth Circuit has stated that Rule 12(b) is the proper mechanism for resolving questions arising under 42 U.S.C.§ 1997e(a), Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), the reason underlying that decision has been undermined. The Ninth Circuit found that failure to exhaust was a matter in abatement which should be raised in a motion made under "unenumerated Rule 12(b)."*fn2 Wyatt, 315 F.3d at 1119. However, the United States Supreme Court recently clarified that failure to exhaust is an affirmative defense which defendant has the burden of pleading and proving. Jones v. Bock, 549 U.S. 199, , 549 S.Ct. 910, 921 (2007). Federal courts appropriately consider affirmative defenses on summary judgment. Here, defendant's motion necessarily requires the court to consider the affidavits and exhibits presented for the purpose of proving the absence of exhaustion. Accordingly, the court finds that a motion for summary judgment is the proper mechanism for resolving the question of whether plaintiff satisfied the exhaustion requirement.
Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).*fn3 As explained by the Ninth Circuit, the utility of Rule 56 to screen which cases actually require resolution of disputed facts over material issues (through presentation of testimony and evidence at trial) has been clarified and enhanced.
In three recent cases, the Supreme Court, by clarifying what the non-moving party must do to withstand a motion for summary judgment, has increased the utility of summary judgment. First, the Court has made clear that if the non-moving party will bear the burden of proof at trial as to an element essential to its case, and that party fails to make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element, then summary judgment is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Second, to withstand a motion for summary judgment, the non-moving party must show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (emphasis added). Finally, if the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.
California Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.), cert. denied, 484 U.S. 1006 (1988) (parallel citations omitted) (emphasis added). In short, there is no "genuine issue as to material fact," if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Grimes v. City and Country of San Francisco, 951 F.2d 236, 239 (9th Cir. 1991) (quoting Celotex, 477 U.S. at 322).
The applicable statute is 42 U.S.C. § 1997e(a), which provides in relevant part: No action shall be brought with respect to prison conditions under section 1983 of this title, 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.
This requirement is mandatory and unequivocal. Booth v. Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) ("Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statue makes exhaustion a precondition to suit." (citation omitted)). A prisoner seeking leave to proceed in forma pauperis in an action challenging the conditions of his confinement brings an action for purposes of 42 U.S.C. § 1997e when he submits his complaint to the court. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Therefore, a prisoner must exhaust available administrative remedies before filing any papers in federal court and is not entitled to a stay of judicial proceedings in order to exhaust. Id. at 1051; McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). Furthermore, in order to satisfy 42 U.S.C. § 1997e(a), there must be "proper exhaustion." Woodford v. Ngo, 126 S.Ct. 2378, 2385-86 (2005). However, "it is the prison's requirements, and not the PLRA that define the boundaries of proper exhaustion." Jones v. Bock, 127 S.Ct. 919, 923 (2007). Thus, a prisoner must "complete the administrative review process in accordance with the applicable procedural rules." Woodford, 126 S.Ct. at 2386. Defendant has the burden of proving that plaintiff did not exhaust. Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005); Wyatt, 315 F.3d at 1119.
California prisoners may appeal "any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). The regulations require the use of specific forms but contain no guidelines for grievance content. Id., at §§ 3084.2, 3085. Prisoners ordinarily must present their allegations on one informal and three formal levels of review, although the informal and the first formal levels may be bypassed. Id., at § 3084.5. A division head reviews appeals on the first formal level, see Id., at § 3084.5(b)(3) (authorizing bypass of the first formal level when the division head cannot resolve it), and the warden or a designee thereof reviews appeals on the second formal level. See Id., at § 3084.5(e)(1). An appeal may be rejected for any number of reasons, i.e., untimeliness, abuse of the grievance ...