The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING MOTION TO DISMISS BE GRANTED IN PART AND DISREGARDED IN PART (Doc. 86) OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
Findings and Recommendations on Defendant's Motion to Dismiss
Plaintiff Ishmael Delaney ("Plaintiff") is a state prisoner proceeding in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's Second Amended Complaint, filed February 19, 2009. (Doc. 76.) Plaintiff names Ramirez Jr., Santiago, Beels, and Atley as defendants in this action.*fn1 On April 13, 2009, Defendant Santiago ("Defendant") filed a motion to dismiss Plaintiff's claims against him for Plaintiff's failure to exhaust her administrative remedies, for failure to state a claim upon which relief may be granted, and with respect to Plaintiff's state law claims, for failure to comply with the California Tort Claims Act. (Doc. 86.) Plaintiff filed an opposition on May 1, 2009, and Defendant Santiago filed a reply on May 8, 2009. (Docs. 88, 91.)
This matter was heard before the undersigned on May 15, 2009, with counsel for Defendant Santiago appearing in person, and counsel for Plaintiff and counsel for Defendant Ramirez Jr. appearing telephonically. Defendant Ramirez Jr. did not participate in the motion.
II. Summary of Allegations Against Defendant Santiago
Plaintiff was incarcerated at Pleasant Valley State Prison ("P.V.S.P.") at the time of the events giving rise to this action. Plaintiff alleges that from April through June 2006 she was sexually harassed, assaulted, and battered by Defendant Ramirez Jr., a Correctional Officer at P.V.S.P. (Doc. 75, Second Amended Complaint, ¶25.) Plaintiff alleges, inter alia, that in April and May 2006, Defendant Ramirez Jr. made sexual gestures and lewd comments to Plaintiff. (Id., ¶26). In May 2006, Defendant Ramirez Jr. was assigned as floor officer in Plaintiff's housing unit. (Id., ¶35). Plaintiff alleges that Ramirez Jr. repeatedly sexually assaulted Plaintiff in June 2006, with the last incident occurring on or about June 15, 2006. (Id., ¶¶51-56). Plaintiff alleges that she informed Defendant Santiago in April 2006 that she was being harassed by Defendant Ramirez Jr. (Id., ¶30). Plaintiff contends that Defendant Santiago was required, and failed, to report the incident to Defendant Beels, his superior.*fn2 Plaintiff alleges a violation of her rights under the Eighth Amendment of the United States Constitution, as well as pendant state claims for violation of her rights under the California Constitution, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress.
III. Motion to Dismiss for Failure to Exhaust Administrative Remedies
A. 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, 549 U.S. 199, 211, 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 Defendant has the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216, 127 S.Ct. at 921; 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. Id. (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.
B. Law of the Case Doctrine
Counsel for Defendant Santiago requested in oral argument that the Court apply the law of the case doctrine in granting Defendant Santiago's motion to dismiss. On August 27, 2008, then defendants former Secretary of the California Department of Corrections and Rehabilitation James E. Tilton and Warden James A. Yates moved to dismiss the claims against them for Plaintiff's failure to exhaust administrative remedies prior to filing suit. (Doc. 55.) The motion was heard on October 24, 2008 and on November 19, 2008, the Court issued a Findings and Recommendations recommending that the motion be granted.*fn3 An order adopting the Findings and Recommendations was issued on December 24, 2008. (Doc. 66.)
"Under the law of the case doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case. For the law of the case doctrine to apply, the issue in question must have been 'decided explicitly or by necessary implication in [the] previous disposition." Hydrick v. ...