The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS CLAIM AGAINST DEFENDANT (Doc. 69) OBJECTIONS DUE IN THIRTY (30) DAYS
Plaintiff, Thomas Hightower, ("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 based on Plaintiff's Second Amended Complaint, filed August 13, 2007. (Doc. 31.) Plaintiff proceeds against Defendant Figueroa solely for unconstitutional retaliation. (Doc. 32.) On October 27, 2008, Defendant Figueroa filed an un-enumerated motion to dismiss under Federal Rule of Civil Procedure 12(b) for Plaintiff's failure to exhaust administrative remedies. (Doc. 69.) The parties filed documents in opposition and reply.*fn1 (Docs. 105, 106.) The motion is deemed submitted. Local Rule 78-230(m).
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 all available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 210-11 (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 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084, et seq. "Any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can reasonably demonstrate as having an adverse effect upon their welfare." Id. at 3084.1(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Cal. Code Regs. tit 15, § 3084.5.
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, 549 U.S. 127, 215-16; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust a non-judicial administrative remedy that is not jurisdictional is subject to an un-enumerated Rule 12(b) motion, rather than a summary judgment motion.*fn2
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.
Defendant Figueroa objected to most of the exhibits Plaintiff filed in support of his opposition. (Doc. 105 1:22-2:5.)
This Court carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material and appropriate for an un-enumerated motion to dismiss.
The events at issue in Plaintiff's Second Amended Complaint occurred at California Substance Abuse Treatment Facility and State ...