The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS ESCOBARA, PENNYWELL, MCGREW, AND LAWHORN'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE DENIED, WITHOUT PREJUDICE (Doc. 161) OBJECTIONS DUE WITHIN FIFTEEN DAYS
Defendants' Motion to Dismiss for Failure to Exhaust
Plaintiff Keith Blackwell, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 20, 2005. The action is proceeding on Plaintiff's second amended complaint, filed July 5, 2007, against Defendants Vo, Escobara, Pennywell, McGrew, and Lawhorn for acting with deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment of the United States Constitution.
On May 29, 2009, Defendants Escobara, Pennywell, McGrew, and Lawhorn filed a motion to dismiss for failure to exhaust, pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b).*fn1 Plaintiff filed an opposition on July 2, 2009, and Defendants filed a reply on July 8, 2009.*fn2 Local Rule 78-230(m).
In addition to opposing Defendants' motion on the merits, Plaintiff argues that the Court should not consider the motion because it was not served on him at his address of record and was instead forwarded to him by his parole officer.
The record reflects, and Defendants' acknowledge, that Plaintiff notified the Court and Defendants of his current address of record in December 2008. (Doc. 138.) Defendants served their motion on Plaintiff on May 29, 2009, at the California Correctional Institution, his former address. Plaintiff received the motion on June 25, 2009, via his parole officer, and filed his opposition.
Defendants' service error is not grounds for blanket rejection of their motion. Service of a motion at a prior address is not entitled to any presumption of delivery, see Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1010 (9th Cir. 2003), and had the Court or Plaintiff become aware of non-service of the motion, the remedy would have been re-service. In this instance, however, Plaintiff acknowledged receipt of the motion via his parole agent and Plaintiff filed an opposition, negating the need for re-service. Therefore, Plaintiff's request for rejection of the motion based on the service error is denied.
III. 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."*fn3 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 Defendants have the burden of raising and proving the absence of exhaustion. Jones, 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. 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.
On October 24, 2004, Plaintiff was transferred to Avenal State Prison. (Doc. 1, Comp., ¶5.) Plaintiff suffers from chronic obstructive pulmonary disease (COPD), and between November 2004 and June 2005, non-parties Dr. Rees and Dr. Harrison documented Plaintiff's need for a medical transfer from Avenal because the area's air quality worsened Plaintiff's COPD. (Id., ¶¶1, 6.) Plaintiff's Eighth Amendment claim against Defendants Escobara, Pennywell, McGrew, and Lawhorn, members of the Classification Unit Committee at ...