The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE DENIED, WITHOUT PREJUDICE (Doc. 51) OBJECTIONS DUE WITHIN FIFTEEN DAYS
Findings and Recommendations on Defendants' Motion to Dismiss
Plaintiff Anthony Joseph Sanchez ("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 against Defendant Stancliff for use of excessive physical force in violation of the Due Process Clause and for violation of the Equal Protection Clause; against Defendants Stancliff and Lindini for deprivation of Plaintiff's liberty interest in his classification status without procedural due process; and against the Kern County Sheriff's Department for violating Plaintiff's rights under the Due Process Clause with respect to an unconstitutional policy or practice of use of force. The events at issue in this action allegedly occurred while Plaintiff was a pretrial detainee housed at the Kern County Jail.
On October 15, 2008, Defendants Stancliff and Kern County Sheriff's Department ("Defendants") filed a motion to dismiss for failure to exhaust.*fn1 Plaintiff filed an opposition on October 29, 2008, and Defendants filed a reply on November 7, 2008.*fn2
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, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (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 v. Bock, 127 S.Ct. 910, 921 (2007); 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.
A. Available Administrative Remedy Process
The Kern County Sheriff's Department has an administrative remedy process in place, which entails a written grievance form that must be submitted within ten working days of the incident being grieved. (Doc. 22, Amend Comp., § II; Doc. 51, Motion, Exs. B & C.) There is no evidence before the Court that the process involves more than one level.
B. Allegations in Amended Complaint Relating to Exhaustion Attempts
The events at issue in this action occurred on or around September 15, 2000. (Amend. Comp., e.g., pp.4-8.) Plaintiff alleges that on or around September 16, 2000, an unidentified officer refused to process his properly submitted grievance. (Id., pp.11-12.) Plaintiff further alleges that he was interviewed on February 2, 2001, at Wasco State Prison by an investigator looking into fraudulent charges made by Defendant Stancliff against another officer who witnessed the incident of excessive force at issue in this action. (Id., pp.12-13.) Plaintiff initially believed he was being interviewed about his grievance but he was informed that there was no record of a grievance on file. (Id.) Plaintiff requested that his interview be processed as a verbal grievance. (Id., p.13.) The investigator agreed and told Plaintiff that he would be informed of the findings and disposition of his grievance following the conclusion of the investigation. (Id., pp.13-14.)
Plaintiff alleges that on or around March 15, 2001, while at Wasco State Prison, he wrote the Kern County Sheriff at least three times to complain about Defendants' conduct, but received no response. (Id., p.18.) Plaintiff further alleges that on or around February 24, 2006, while at the Kern County Jail, he received written notice from the Kern County Sheriff's Department ...