The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
On March 31, 2006, plaintiff Ernest Miller, a current prisoner confined at High Desert State Prison, appearing pro se, filed suit against the California Department of Corrections. On February 26, 2007, plaintiff filed a first amended complaint. On December 20, 2007, plaintiff filed a second amended complaint ("SAC") against defendants the California Department of Corrections, High Desert State Prison, "Mr. Harmon," "Mr. Walker," and "Mr. Essman" alleging that defendants tampered with his mail at High Desert State Prison because he was "labeled Black-African-American by misconduct."
On January 30, 2009, defendant Walker filed the instant motion to dismiss plaintiff's SAC for failure to exhaust administrative remedies.*fn1 On February 9, 2009, plaintiff filed his opposition. On February 17, 2009, defendant filed his reply. After carefully considering the parties' arguments, the Court finds and concludes as follows.
Plaintiff alleges that from September 2006 to February 2007, defendant Walker of the Behavioral Management Unit ("B.M.U") knowingly and intentionally tampered with plaintiff's mail due to the plaintiff being "labeled Black African-American by misconduct." Compl. ¶ 3. Plaintiff further alleges that defendant Walker told him that in "B.M.U they don't care only black prisoners that do what they want get their mail and they let there mail go out to the streets." Compl. ¶ 4. Finally, plaintiff alleges that defendant Walker gave plaintiff's "Stuff" Magazine to "white and Latin Caucasians." Id.
The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. §§ 1997 et seq., provides as follows:
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.
42 U.S.C. § 1997(e)(a); see also Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006) (stating that prisoner must exhaust administrative remedies before commencing litigation). Exhaustion requires that the prisoner "[properly]" exhaust all administrative remedies, which includes submitting an administrative claim in compliance with the prison grievance process' deadlines. Woodford v. Ngo, 126 S.Ct. 2378, 2387-93 (2006); see also Jones v. Bock, 127 S.Ct. 910, 923 (2007) ("[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion."). The exhaustion requirement applies to "all inmate suits about prison life." Porter v. Nussle, 534 U.S. 516, 532 (2002). Failure to exhaust administrative remedies in compliance with 42 U.S.C. § 1997(e)(a) is an affirmative defense that defendants must raise and prove. Jones, 127 S.Ct. at 919-21.
In the Ninth Circuit, failure to exhaust non-judicial, non-jurisdictional administrative remedies is "treated as a matter in abatement, which is subject to an unenumerated [Fed. R. Civ. P.] 12(b) motion rather than a motion for summary judgment." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The defendant must demonstrate that the plaintiff failed to exhaust an "available" administrative remedy. Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2006). This requires that the defendant come forward with evidence, including statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case, such as in the response memoranda in these cases.
With regard to the latter category of evidence, information provided the prisoner is pertinent because it informs [the court's] determination of whether relief was, as a practical matter, 'available.'
Id. at 937. "In deciding a motion to dismiss for a 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 district court concludes that the prisoner has not exhausted non-judicial remedies, the proper ...