Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This case proceeds before the undersigned pursuant to the consent of the parties. See 28 U.S.C. § 636(c)(1). Plaintiff alleges in his April 3, 2007, complaint that defendants used excessive force against him. Defendants'*fn1 filed on May 23, 2008, a motion to dismiss on the ground that plaintiff failed to exhaust the available administrative remedies. For the reasons explained below, defendants' motion, construed as a motion for summary judgment, must be granted.
In the complaint, plaintiff alleges that on or around October 11, 2006, he was working on the recreational yard when an officer ordered all the prisoners down. Am. Compl., at 3. Once the prisoners complied, guards began to search for weapons. Id. Defendants Rios, Miller and Wallace approached plaintiff, who was prone on the ground, and with other unknown guards surrounded plaintiff. Id., at 4. One of the officers planted a weapon on plaintiff, whereupon Wallace and Miller grabbed plaintiff's arms and defendants Nielson, Rios, Cantu and Gibson beat plaintiff on his side, head, ribs and legs. Id. Thereafter, Gibson held plaintiff while Rios dispensed pepper spray in plaintiff's face from close range. Id. On October 25, 2006, plaintiff filed a grievance about this treatment. Defs.' Mot. to Dism., Exh. B, at 2. As relief, he sought money damages and stated, "I'm hoping this will be granted to prevent any public attention or filing of a board of claims." Id. The informal level of review was bypassed. Id. Thus, on January 28, 2008, prison officials issued a memorandum decision on the first formal level of review. Defs.' Mot. to Dism., Exh. B, at 1. The memorandum noted plaintiff's allegations and construed plaintiff's request for relief as seeking punishment of the perpetrators and money damages. Id. It also noted that prison officials had "completed" a review of plaintiff's allegations by interviewing several officers, viewing a video tape of the incident and reviewing the offers' reports about the incident. Id. Furthermore, plaintiff's appeal was "partially granted," but insofar as plaintiff sought adverse action against the guards "a request for administrative action regarding staff or the placement of documentation in a staff member's personnel file is beyond the scope of the staff complaint process." Id. The memorandum further explained:
Allegations of staff misconduct do not limit or restrict the availability of further relief via the inmate appeals process. If you wish to appeal the decision, you must submit your staff complaint appeal through all levels of appeal review up to, and including, the Director's Level of Review. Once a decision has been rendered at the Director's Level of Review, your administrative remedies will be considered exhausted.
Id. Defendants have submitted the declaration of an appeals coordinator, I. O'Brian. Decl. of O'Brian in Supp. of Defs.' Mot. to Dism. O'Brian states that he has reviewed prison records and has found no appeal about this matter on the second formal level of review. Id. ¶ 5. Defendants also have submitted the declaration of the Chief of the Inmate Appeals Branch ("IAB"), N. Grannis, in support of their assertion that plaintiff did not appeal this matter to the Director's Level of Review. Defs.' Mot. to Dism., Attach. 1. Grannis asserts that his search of IAB records shows that from October 11, 2006, through March 6, 2007, the IAB received no appeal from plaintiff for review on the Director's Level. Id. ¶ 3. Nowhere does plaintiff allege that he filed an appeal to the Director's Level of Review.
II. Standards Applicable to This Motion
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). 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 statute 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, 311 F.3d 1198.
The failure to exhaust non-judicial administrative remedies as required by § 1997e(a) is not jurisdictional. Wyatt v. Terhune, 315 F.3d 1108, 1117 n.9 (9th Cir. 2003). Nor does § 1997e(a) require a plaintiff to plead exhaustion. Id. at 1119. Rather, "§ 1997e(a) creates a defense -- defendants have the burden of raising and proving the absence of exhaustion." Id. The Ninth Circuit determined in Wyatt that because the defense of failure to exhaust "is not on the merits" and summary judgment "is on the merits," the defense should be treated as a matter in abatement*fn2 to be resolved pursuant to a motion made under "unenumerated Rule 12(b)." Id. The Circuit stated that "[i]n 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.
The United States Supreme Court expressly stated in Jones v. Bock, 549 U.S. 199, 216 (2007), that failure to exhaust under the PLRA is an affirmative defense. It also stated that if the affirmative defense can be decided on the pleadings alone, a motion under Rule 12(b)(6) is appropriate. Id. at 215. The Court analogized to a motion to dismiss based on a statute limitations defense and stated:
A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract.
But, even when they are not addressed to the merits affirmative defenses which require the presentation of evidence outside the pleadings (including failure to exhaust as required by 42 U.S.C. § 1997e(a)) are properly considered on summary judgment, with disputed material factual issues reserved for resolution through credibility determinations as to the live testimony of the conflicting witnesses.*fn3 Fed. R. Civ. P. 12(d) (where a party presents affidavits or other matters outside the pleadings in support of its motion, the court must treat the motion "as one for summary judgment under Rule 56"), 56(b); Panero v. City of North Las Vegas, 432 F.3d 949, 952 (9th Cir. 2005).*fn4 The Court in Jones made clear that, "beyond the departures specified by the PLRA itself," nothing in the PLRA suggests that usual procedural practices should not be followed and noted that departures from the usual procedural requirements are to be expressly made by Congress. Jones, 549 U.S. at 212, 214-16. Additionally, the Ninth Circuit recognized in Wyatt that when the district court looks beyond the pleadings to a factual record, which commonly occurs in deciding an exhaustion motion, the court must do so under "a procedure closely analogous to summary judgment." Wyatt, 315 F.3d at 1119, n.14.
Thus, whether a motion for failure to exhaust under the PLRA may be raised under Rule 12 or Rule 56 is not determined by whether the defense asserted in the motion goes to the "merits" of the claim. Regardless of whether judgment is sought on the merits or whether the motion seeks to bar consideration of the merits based on a technical ground that precludes reaching the merits (i.e., exhaustion, issue or claim preclusion, a statute of limitations, etc.), the determining factor is whether the factual predicate for the motion is based on the text of the pleading or instead depends upon evidence submitted with the motion. See Jones, 549 U.S. at 215 ("A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief.").
Here, defendant's motion necessarily requires the court to consider the affidavits and exhibits presented for the purpose of proving the absence of exhaustion. Notwithstanding the analysis above, the court recognizes that Wyatt is controlling in these circumstances and that the instant motion is properly construed as an "unenumerated" Rule 12(b) motion to dismiss. Accordingly, the court analyzes the motion, as Wyatt suggests, under a standard "closely analogous to summary judgment." 315 F.3d at 119, n.15. If, under that standard, the court ...