FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently under consideration is defendants' motion to dismiss. Cook, Plainer and Wong move to dismiss on the ground that plaintiff failed to exhaust the available procedural remedies. All defendants move to dismiss plaintiff's claims for damages in their official capacities. For the reasons explained, the motion must be granted.*fn1
This action proceeds on the following claims: (1) defendant J. Cook urinated on plaintiff's mattress; (2) defendant R. Plainer refused to replace the soiled mattress; (3) defendant Wong knew of a series of events involving J. Cook, but failed to take remedial action, thereby leading to Cook's violating plaintiff's rights by urinating on his mattress; (4) defendant Huston was deliberately indifferent to plaintiff's serious medical needs by denying plaintiff treatment for a stab wound.*fn2 Plaintiff alleges that these events occurred at High Desert State Prison ("HDSP"). Plaintiff seeks damages from each defendant in their individual capacities. Am. Compl., at 4.
On September 12, 2007, plaintiff submitted a grievance designated Log No. 07-03134, in which he complained that Cook had urinated on his mattress and that Plainer refused to provide a clean one. Defs.' Mot. to Dism., Attach. 2, Audette Decl., at ¶ 2; Am. Compl., Ex. A, at unenumerated page 5.*fn3 Plaintiff did not name defendant Wong in this appeal. Neither did he generally refer to a supervisor or anyone else who could have prevented the conduct of Cook and Plainer. See Id. In response, plaintiff received written notice dated September 12, 2007, informing him that his appeal was sent to be considered on the first level of review. Am. Compl., Ex. A, at 1. On September 29, 2007, and October 2, 2007, the sergeant responsible for investigating the matter on the first formal level of review, Sergeant Audette, attempted to interview plaintiff about the grievance. Audette Decl., at ¶¶ 3, 4;*fn4 Defs.' Mot. to Dism., Attach. 3, Dangler Decl., Ex. A, at 2. On both occasions, plaintiff refused to speak to Sergeant Audette. Audette Decl., at ¶¶ 3-4. Therefore, Sergeant Audette returned the appeal to plaintiff and cancelled it on the ground that plaintiff refused to cooperate in the appeals process. Id., at ¶ 3. Attached to the cancelled appeal was an Appeals Screening Form explaining that the appeal was cancelled for, "abuse of the appeal process." Am. Compl., Ex. A, at 2. The specific reason given was plaintiff's "[l]ack of Cooperation: refusal to interview or cooperate with reviewer shall result in cancellation of the appeal, per CCR 3084.4(d)." Id. Prison officials also sent plaintiff a memorandum dated October 9, 2007, noting that plaintiff refused to permit Sergeant Audette to interview him; and, therefore, the appeal was cancelled on the first level of review. Am. Compl., Ex. A, at 3. The memorandum noted that an inquiry into plaintiff's allegations had been conducted nonetheless, but in light of the confidential nature of personnel matters, the results would not be disclosed to plaintiff. Id., Ex. A., at 4. The following concluded the memorandum:
Allegations of staff misconduct do not limit or restrict the availability of further relief via the inmate appeals process. If you wish to appeal the decision, you must submit your staff complaint appeal through all levels of appeal review up to, and including, the Director's level of Review. Once a decision has been rendered at the director's Level of Review, your administrative remedies will be considered exhausted.
Id. On November 5, 2007, plaintiff appealed to the second level of review, arguing that Sergeant Audette had lied about attempting to interview plaintiff. Id. at 5, 6. Plaintiff asserted that Audette never attempted to interview plaintiff, and he requested that an "honest correctional lieutenant"*fn5 be assigned to interview him. Id. This appeal also was rejected. Id. There is no evidence that any written explanation of the rejection was given to plaintiff. On November 11, 2007, plaintiff submitted a written inquiry to the appeals coordinator asking, "when a 602 gets rejected, does that mean 'administrative remedies' are exhausted, or not. [sic]" Id., Ex. F, at 14. The written response said, "[I]t depends on the reason it was rejected." Id. The Inmate Appeals Branch ("IAB"), within the California Department of Corrections and Rehabilitations ("CDCR"), which is responsible for processing grievances on the Director's Level of Review has no record that plaintiff submitted a grievance on that level complaining about the conduct of Cook and Plainer. Defs.' Mot. to Dism., Attach. 4, Grannis Decl., at ¶¶ 1, 3-4, 7. Plaintiff has not submitted any evidence that he appealed to that level of review.
Defendants rely on the declaration of Grannis to demonstrate that plaintiff cannot prove that he exhausted the available administrative remedies. In her declaration, Grannis states that she searched CDCR records and did not find any grievances alleging that defendant Wong failed to intervene to prevent Plainer and Cook from violating his rights. Grannis Decl., at ¶ 7. Plaintiff submits no evidence to contest this assertion.
On November 15, 2007, plaintiff requested that the Clerk of the Court send him the forms necessary to commence a civil rights action. Dckt. 3. Plaintiff filed the initial complaint in this action on December 3, 2007. Dckt. 1
II. Defendants' Motion to Dismiss for Failure to Exhaust
Defendant Cook, Plainer and Wongmove pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss plaintiff's complaint for failure to exhaust.
1. 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*fn6 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 ...