The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED (Doc. 42) OBJECTIONS DUE WITHIN THIRTY DAYS
Defendants' Motion to Dismiss for Failure to Exhaust
Plaintiff Moody Woodrow, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 27, 2008. The action is proceeding on Plaintiff's third amended complaint, filed December 4, 2008, against Defendants Martin, Davidson, and Miller for use of excessive physical force, in violation of the Eighth Amendment of the United States Constitution.
On April 20, 2009, Defendants filed a motion to dismiss for failure to exhaust, pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b). Plaintiff filed an opposition on May 5, 2009, and Defendants filed a reply on May 12, 2009.*fn1 Local Rule 78-230(m).
II. Statutory 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 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.
The California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2009). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(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." Id. at § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378 (2006); McKinney, 311 F.3d at 1199-1201.
Defendants move for dismissal of the claim against them on the ground that Plaintiff did not exhaust. Defendants submit evidence that Plaintiff filed a grievance concerning an incident on May 17, 2008, involving Defendants, but it was screened out because Plaintiff failed to specify the relief he was seeking, and Plaintiff did not thereafter resubmit the grievance. (Doc. 42-2, Motion, Ex. A, Lopez Dec., ¶5.) Further, although between May 2008 and December 2008 Plaintiff submitted seven grievances to the third and final level of review, known as the Director's Level, they were not accepted for review because Plaintiff failed to obtain review at the second level, in compliance with the regulations. (Id., Ex. B, Grannis Dec., ¶10.)
In opposition, Plaintiff argues that he attempted to exhaust the prison grievance system, and also filed petitions for writ of habeas corpus in an attempt to exhaust. (Doc. 45, Opp., 2:4-24.) Additionally, Plaintiff makes generalized assertions that grievances are destroyed. (Id., 2:7-11 & 3:6-18.)
At the time of the events at issue in this action, Plaintiff was incarcerated at Avenal State Prison. Plaintiff's claim arises from an incident on May 16, 2008, in which Defendants allegedly used excessive physical force against Plaintiff during a planned escort from the prison to Coalinga Regional Medical Center for medical care. (Doc. 29, 3rd Amend. Comp.; Doc. 30, Screening Order.)
Plaintiff's exhibits demonstrate that on May 18, 2008, he submitted a grievance complaining about an incident which occurred on May 17, 2008, prior to a medical transport. (Opp., p. 13.) Defendants are named in the grievance, and Plaintiff references leg restraints and falling on the cement floor, facts which are also set forth in the third amended complaint. (Id.) The grievance was received on May 21, 2008, and screened out for abuse of the appeals process and for failure to specify the relief sought. (Id., pp. 12-13.) Pursuant ...