The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is the motion to dismiss (Doc. 19) filed by defendants Hooven and Fleming.*fn1 Defendants argue plaintiff failed to exhaust available administrative remedies prior to filing this action.
Plaintiff names the following as defendants: Ader, Fleming, Hooven, and unknown correctional officers. Plaintiff claims:
CCI (Unknown) Ader failed to act reasonably when informed of an imminent threat of serious injury to my person and a previous altercation via institutional mail 12-2-05. When at the door of 216-C6 High Desert State Prison inmate Hokes refused me as a roommate threatening a "problem" 11-29-05 3rd watch. The escorting officer from R&R to C6 and 3rd C6 floor officers (names unknown) heard this. I offered to go to the hole or another cell to no avail. Inmate Hokes was taken out of the cell and I was put in. My mobility was clearly impaired, and I had no shoes. After snow therapy, further aggravating the situation, inmate Hokes was out back in the cell 11-30-05. I informed all four C6 floor officers (3 names unknown) including James Hooven that I need my knee braces (supports) and my shoes to have a chance to defend myself because violence was [undecipherable] if I was not moved. On 12-1-05 again I told all four floor officers on 2nd and 3rd watch (3 names unknown) including Brett Fleming my concerns stressing the violence to come. That night inmate Hokes decided that I wasn't trying "hard enough" to move and we had out first physical altercation and due to my mobility problems and lack of shoes I was at a great disadvantage. I put the request for interview in the mail to (unknown) Ader that night. On 12-2-05 I doubled my efforts voicing my concerns and letting the 2nd and 3rd watch floor officers for C6, including Brett Fleming (3 names unknown) know that there was a physical altercation and another is imminent. On 12-3-05 through 12-5-05 all C6 2nd and 3rd watch floor officers, including Brett Fleming and James Hooven (other names unknown) were informed of the problem and the altercation. I was not moved and on 12-6-05 I was forced to defend myself against inmate Hokes and sustained significant injuries, some of which are permanent. Inmate Hokes is a violent, mentally disturbed known trouble maker and no one did anything despite the knowledge that an actual altercation transpired and knowledge of serious risk of serious injury. This is deliberate indifference.
Plaintiff seeks monetary damages and injunctive relief.
II. STANDARDS FOR MOTION TO DISMISS
A motion to dismiss for lack of exhaustion of administrative remedies is properly the subject of an unenumerated motion under Federal Rule of Civil Procedure 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). "In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20. If the court concludes that administrative remedies have not been exhausted, the unexhausted claim should be dismissed without prejudice. See id. at 1120; see also Jones v. Bock, 127 S.Ct. 910 (2007).
Defendants argue plaintiff failed to exhaust administrative remedies by filing prison grievances concerning his claim. In support of their motion, defendants offer the declarations of D. Gunter, the Appeals Supervisor at High Desert State Prison ("HDSP"), D. Holbrook, the Appeals Coordinator at Ironwood State Prison, and N. Grannis, the Chief of the Inmate Appeals Branch in Sacramento, California. Based on these declarations, defendants argue:
There is no record of Cunningham having filed a grievance at the first or second levels with the HDSP or Ironwood State Prison appeals offices regarding Defendants' alleged failure to protect him from an attack by his cellmate at HDSP, where he was previously housed. (Gunter Decl., ¶ 5; Holbrook decl. ¶ 5). Likewise, there is no record of the Inmate Appeals Branch ever having accepted an appeal for Director's level review concerning Defendants' alleged failure to protect. (Grannis decl. ¶ 9).
The Court should therefore find that Cunningham did not exhaust the prison's administrative process.
In his opposition, plaintiff argues that the administrative grievance process was not available because "the Administration did not allow the Plaintiff to go forward with the 602 process, thereby denying the Plaintiff an administrative remedy." He also appears to assert that he did submit various grievances and attaches copies of inmate appeal forms to his opposition. At Exhibit I to his opposition, plaintiff attaches an "Inmate/Parolee Appeal Form" which is stamped "Received Aug-2 2006 Inmate Appeals Branch." In this document, plaintiff describes the events outlined in his complaint. At Exhibit II, he attaches an "Appeals Screening Form" dated January 23, 2006, indicating an abuse of the appeal process because: "This is a request for information; it is not an appeal." At Exhibit III, plaintiff attaches a September 27, 2006, letter from the Inmate Appeals Branch signed by N. Grannis, which states:
The enclosed documents are being returned to you for the following reasons: An appellant must submit the appeal within 15 working days of the event or decision being appealed, or of receiving a ...