The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED (Doc. 31)
ORDER DISREGARDING COURT DOCUMENT #62 (Doc. 62)
Findings and Recommendations
Plaintiff Jimmy Magee ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's second amended complaint, filed June 1, 2007, against defendants Chavez and Simpson ("defendants") for use of excessive force, in violation of the Eighth Amendment. On December 28, 2007, defendant filed a motion to dismiss for failure to exhaust. (Doc. 31.) Plaintiff filed his opposition on January 22, 2008 (Doc. 34). Defendants filed their reply on January 30, 2008 (Doc. 37), and plaintiff filed a sur-reply on February 15, 2008 (Doc. 39).
On May 30, 2008, this court issued a Finding and Recommendation that defendants' motion be denied. (Doc. 45). Defendants filed their objections on June 20, 2008, stating that the court had considered plaintiff's sur-opposition, without providing them with an opportunity to respond to the arguments raised therein.
Good cause appearing, the court vacated its Findings and Recommendations, and granted defendants leave to respond to plaintiff's sur-opposition. (Doc. 55). The parties were further advised that as both sides had now been provided ample opportunity to present their arguments, no further responses or sur-replies, submitted by any party, would be considered in the motion to dismiss for failure to exhaust.
Defendants filed their response to plaintiff's sur-opposition on August 13, 2008. (Doc. 61). Notwithstanding the court's order, plaintiff has now filed a further response to defendants' sur-reply. (Doc. 62). Plaintiff has already filed an opposition and a sur-opposition, and has been afforded ample opportunity to raise any arguments in opposition. Plaintiff is not entitled to continually supplement his opposition.*fn1 A further response to raise additional arguments in not provided for in the Federal Rules and is contrary to the court's order filed July 24, 2008. Accordingly, plaintiff's response, filed August 21, 2008 is HEREBY DISREGARDED.
II. Exhaustion Requirement
Pursuant to the Prison Litigation Reform Act of 1995, "[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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 127 S.Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2007). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. at § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 126 S.Ct. 2378, 2383 (2006); McKinney, 311 F.3d at 1199-1201.
The Eighth Amendment claim at issue in this action accrued on September 5, 2005, when defendants allegedly used excessive force against plaintiff during a prison riot. Defendants do not dispute that plaintiff filed his administrative appeals through the Director's level. However, defendants argue that plaintiff's ...