FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He alleges that defendant Strand violated his Eighth Amendment rights by sexually harassing him on August 28, 2007. Currently under consideration is defendant's April 3, 2009, motion to dismiss this action on the ground that plaintiff failed to exhaust the available administrative remedies.*fn1 For the reasons stated below, the court finds that defendant's motion to dismiss must be granted.
In the verified amended complaint, plaintiff alleges that while he was confined at Folsom State Prison ("FSP"), he worked for the Prison Industry Authority ("PIA") and defendant Eric Strand was his supervisor. Am. Compl., at 3. Plaintiff claims that on August 28, 2007, Strand subjected him to sexual harassment while in a storage room. Id. Allegedly, plaintiff told Strand never to "do that [stuff] to me." Id. Shortly thereafter, plaintiff touched Strand's hand while asking about a raise. Id., Ex. B, at 1. Strand told plaintiff never to touch him and called officers to his assistance. Id. The officers approached plaintiff with their batons raised, apparently prepared for a physical confrontation with plaintiff. Id. Plaintiff was charged with battery on a non-peace officer. Id. Following an October 2, 2007, disciplinary hearing, plaintiff was found guilty as charged. Am. Compl., Ex. A, at 1, 5.
Defendant has submitted evidence that plaintiff filed a grievance, designated Grievance Log No. 07-1044, in which he mentioned the August 28, 2007 incident with defendant Strand.*fn2
Def.'s Mot. to Dism., Casey Decl., Ex. 1 at p. 1. In his appeal on that grievance plaintiff challenged the disciplinary conviction of October 2, 2007. Id. In particular, he alleged that he was resting while the "leadman" went to the bathroom. Id. Seeing that plaintiff was idle, defendant Strand approached and asked plaintiff what he was doing. Plaintiff responded by pointing to about 60 sheets of ten gauge metal that had been cut and explaining that he was working on door panels. Id. at 1, 4. Strand directed plaintiff to clean up the work area. Plaintiff then allegedly touched Strand's wrist, "in a friendly gesture," and asked Strand about a raise. Id.
Strand became angry, and yelled at plaintiff telling him not to touch him. Id. About twenty minutes later, guards approached plaintiff aggressively with batons. Id. Significantly, the appeal does not contain any allegation that Strand subjected sexual harassed plaintiff. Neither did plaintiff mention the Strand incident in any subsequent appeal. Rather, the administrative appeal focused on plaintiff's appeal of the charge against him. As relief, plaintiff requested that the disciplinary conviction be removed from his file and that it be replaced with a different form containing a reprimand because plaintiff "was unaware that he could not touch any staff, no matter how brief." Id., at 1.
Prison officials bypassed the informal and first formal levels of review. They initially considered this grievance on the second level of review. Id. at 4. They denied the appeal in a memorandum that stated, "the appellant is advised that this issue may be submitted for a Director's Level of Review if desired." Id.
Defendant asserts that prison officials have searched databases maintained by the California Department of Corrections and Rehabilitation have not found any appeal by plaintiff accusing him of sexual harassment. Casey Decl., ¶ 4; Def.'s Mot. to Dism., Grannis Decl., ¶ 3, 4. One official states that he throughly searched FSP appeal records and found no appeal on the first or second levels in which plaintiff alleges that Strand sexually harassed him. Id. ¶ 5. The other official states that she searched records maintained by the California Department of Corrections and Rehabilitation and found no such appeal on the Director's Level of Review complaining that Strand sexually harassed plaintiff. Grannis Decl., ¶ 3, 4.
A. Motion to Dismiss for Failure to Exhaust
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). This requirement is mandatory and unequivocal. Booth v. Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) ("Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to suit." (citation omitted)). A prisoner seeking leave to proceed in forma pauperis in an action challenging the conditions of his confinement brings an action for purposes of 42 U.S.C. § 1997e when he submits his complaint to the court. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Therefore, a prisoner must exhaust available administrative remedies before filing any papers in federal court and is not entitled to a stay of judicial proceedings in order to exhaust. Id. at 1051; McKinney, 311 F.3d 1198.
The failure to exhaust non-judicial administrative remedies as required by § 1997e(a) is not jurisdictional. Wyatt v. Terhune, 315 F.3d 1108, 1117 n.9 (9th Cir. 2003). Nor does § 1997e(a) require a plaintiff to plead exhaustion. Id. at 1119. Rather, "§ 1997e(a) creates a defense -- defendants have the burden of raising and proving the absence of exhaustion." Id. The Ninth Circuit determined in Wyatt that because the defense of failure to exhaust "is not on the merits" and summary judgment "is on the merits," the defense should be treated as a matter in abatement*fn3 to be resolved pursuant to a motion made under "unenumerated Rule 12(b)." Id.
The Circuit stated that "[i]n deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20.
The United States Supreme Court stated in Jones v. Bock, 549 U.S. 199, 216 (2007), that failure to exhaust under the PLRA is an affirmative defense. It also stated that if the affirmative defense can be decided on the pleadings alone, a motion under Rule 12(b)(6) is appropriate. Id. at 215. The Court ...