The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
REPORT AND RECOMMENDATION
The case has been referred to the undersigned Magistrate Judge by Order dated May 6, 2008 (Docket No. 44). The following motions are currently pending: (1) Defendant F. Herrera's Motion to Dismiss Plaintiff's Complaint. (Docket No. 29); (2) Defendant F. Herrera's Second Request for Extension of Time to Respond to Complaint (Docket No. 27); (3) Plaintiff's Notice of Obstruction of Justice-- Non Defendants (Calipatria State Prison) and Request for Injunction (Docket No. 37); (4) Plaintiff's Motion for Appointment of Counsel (Docket No. 38); (5) Plaintiff's Request for Entry of Default (Docket No. 40); and (6) Plaintiff's Request for Default Judgment (Docket No. 41).
Having carefully reviewed the record and being otherwise fully advised, the following Report and Recommendation is hereby made.
I. DEFENDANT'S MOTION TO DISMISS
On July 25, 2006, Plaintiff, an inmate at the Kern Valley State Prison, engaged in a discussion with other inmates about the prison's policy of strip-searching inmates when returning to their cells from the yard. Complaint, p. 4 (Docket No. 1).*fn1 At the time, Plaintiff and the other inmates were undressing in order to comply with the policy. Defendant Officer Herrera was present and commented that the "MAC Committee," of which Plaintiff was a member, had agreed to the strip-down policy. Id. Plaintiff and Herrera exchanged words of disagreement with each other and Plaintiff walked away from Herrera. Id. at pp. 4--5. Herrera called after Plaintiff and Plaintiff did not respond, so Herrera called for the inmates in the yard to "get down." Id. Plaintiff held his clothing in one hand and his water bottle in another, and Herrera sprayed Plaintiff's back and head with pepper spray before Plaintiff laid flat to the ground with his arms out. Id. at p. 5. Plaintiff was later escorted to the medical department for decontamination. Id.
Plaintiff filed a single grievance related to the incident that occurred between him and Herrera, wherein Plaintiff claimed that Herrera unjustifiably pepper-sprayed him. Complaint, Exh. A, p. 13, (Docket No. 1). An Appeal Assignment Notice dated August 24, 2006, assigned Plaintiff's grievance with log number KVSP-O-02285. Id. at p. 11. This Notice also informed Plaintiff that his appeal had been granted a second level review. Id. On December 20, 2006,
Plaintiff's claim was partially granted at the second level of review. Motion to Dismiss, Exh. A, p. 11, (Docket No. 29-2).
Plaintiff filed this action on March 9, 2007, seeking compensatory and punitive damages for the alleged excessive force exerted upon him by Herrera. Complaint, p. 1 (Docket No. 1).*fn2
After filing this action, and approximately 120 days after the issuance of the second level appeal decision, Plaintiff appealed the decision to the Inmate Appeals Branch for the Director's level of review on April 19, 2007. Motion to Dismiss, Exh. C, p. 20 (Docket No. 29-2). The Inmate Appeals Branch screened out, or denied, Plaintiff's appeal as untimely because Plaintiff failed to appeal the second level decision within 15 days of receipt. Id. The screen-out decision rendered on April 19, 2007, is the final disposition of Plaintiff's administrative appeal. Id.
Defendant filed his motion to dismiss on January 21, 2009, on the grounds that Plaintiff filed this action prior to exhausting his administrative remedies, which contravenes well-established case law that requires prisoners to exhaust their administrative remedies prior to bringing a civil rights lawsuit. Motion to Dismiss, pp. 3--4 (Docket No. 29-2). Defendant notes that Plaintiff filed this action on March 9, 2007, more than one month prior to appealing the administrative second level decision to the director's level of review.
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"),*fn3 a prisoner is required to exhaust all of his administrative remedies within the prison system before he can bring a civil rights lawsuit in federal court. 42 U.S.C. § 1997e(a); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Where there is an informal and relatively simple prison grievance system, prisoners must take advantage of it and properly exhaust their administrative remedies through that system. Woodford v. Ngo, 548 U.S. 81, 103 (2006). "Proper" exhaustion of administrative remedies means that "a prisoner must complete the ...