The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING MOTION TO DISMISS
Plaintiff Richard Joseph Crane ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is Defendant's motion to dismiss this action for Plaintiff's failure to properly exhaust his administrative remedies prior to suit as required by 42 U.S.C. § 1997e(a). (Doc. #44.) For the reasons set forth below, the Court finds that Plaintiff did not properly exhaust his administrative remedies prior to filing suit and Defendant's motion to dismiss is granted.
This action proceeds on Plaintiff's Second Amended Complaint filed on January 24, 2007. (Doc. #33.) The Court screened Plaintiff's Second Amended Complaint and found that it stated a cognizable claim against Defendant M. Gonzales for deliberate indifference to Plaintiff's safety. (Doc. #34.) Plaintiff's other claims were dismissed. (Docs. #34, 36.) Defendant filed a motion to dismiss on October 3, 2008. (Doc. #44.) Plaintiff filed an opposition to Defendant's motion to dismiss on October 28, 2008. (Doc. #47.) Both parties have consented to magistrate jurisdiction. (Docs. #50, 51.)
II. Defendant's Motion to Dismiss
Defendant argues in his motion to dismiss that he is entitled to dismissal because Plaintiff did not properly exhaust his administrative remedies prior to filing this lawsuit. (Def.'s Notice and Mot. to Dismiss Pursuant to Unenumerated Federal Rule of Civil Procedure 12(b); Mem. of P. & A. 1:22-24.)
Defendant alleges that Plaintiff's claim is based on the allegation that Defendant Gonzales deliberately incited inmates to harm him, culminating in Plaintiff's attack by inmate Zaragosa on July 16,2003. (Mot. to Dismiss 5:8-10.) Plaintiff mailed two CDC Inmate Appeals on July 31, 2003. (Mot. to Dismiss 5:10-14.) One appeal was sent to the Director of Corrections/Chief Inmate Appeals, and the other appeal was sent to the U.S. Eastern District Court (presumably the Eastern District of California). (Mot. to Dismiss 5:10-14.) Both appeals were returned to Plaintiff. (Mot. to Dismiss 5:14-17.) On August 11, 2003, Plaintiff sent one of the returned appeals to the Appeals Coordinator. (Mot. to Dismiss 5:14-17.) On August 18, 2003, the Appeals Coordinator returned Plaintiff's appeal because by that time, his appeal was untimely. (Mot. to Dismiss 5:18-19.) A timely appeal must be submitted within fifteen working days of the event or decision being appealed, or of receiving an unacceptable lower level appeal decision. (Mot. to Dismiss 4:26-28.) Plaintiff did not pursue his appeal any further. (Mot. to Dismiss 5:23-25.)
In his opposition, Plaintiff does not dispute any of Defendant's factual allegations. Instead, Plaintiff argues that he was "essentially blind for some four days following the assault" which "made it impossible for him to pursue legal work during these days." (Pl.'s Opp'n to Def.'s Mot. to Dismiss 2:10-13.) Plaintiff also argues that he sent his appeals to the "Chief Inmate Appeals Branch of CDCR" and the federal court, instead of properly sending his appeal to the Appeals Coordinator, because "mail sent to the prison Appeals Office is neither sealed nor logged." (Pl.'s Opp'n 2:21-23.) Plaintiff alleges that "prison officials were obstructing receipt of and timely processing of the plaintiff's previous appeals." (Pl.'s Opp'n 2:23-26.)
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). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 435 U.S. 516, 532 (2002). "All 'available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be 'plain, speedy, and effective.'" Porter, 534 U.S. at 524 (citing Booth v. Churner, 532 U.S. 731, 739 n.5 (2001)). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth, 532 U.S. at 741. Exhaustion must also be proper. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules." Id. at 90.
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." Cal. Code Regs. tit 15, § 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 which Defendants have the burden of raising and proving the absence of exhaustion. 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. Id. 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. Id. 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 Ninth Circuit has not yet decided whether exceptions to the PLRA's exhaustion requirement exist. Ngo v. Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008). However, other circuits have held that the exhaustion requirement is satisfied when prison officials prevent exhaustion from occurring through misconduct, or fail to respond to a grievance within the policy time limits. See, e.g. Moore v. Bennette, 517 F.3d 717, 725 (4th Cir.2008) ("[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it."); Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.2007) (Courts are "obligated to ensure any defects in exhaustion were not procured from the action of inaction of prison officials."); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.2006) (administrative remedy not available if prison employees do not respond to a properly filed grievance or use affirmative misconduct to prevent a prisoner from exhausting); Boyd v. Corrections Corp. of America, 380 F.3d 989, 996 (6th Cir.2004) ("administrative remedies are exhausted when prison officials fail to timely respond to properly filed grievance"); Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (inability to utilize inmate appeals process due to prison officials' conduct or the failure of prison officials to timely advance appeal may justify failure to exhaust); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002) (the failure to respond to a grievance within the policy time limits renders remedy unavailable); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002) (when prison officials fail to respond, the remedy becomes unavailable, and exhaustion occurs); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir.2001) (district court did not err when it declined to dismiss claim for failure to exhaust where prison failed to respond to grievance); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.1999) (when a valid grievance has been filed and the state's time for responding has expired, the remedies are deemed exhausted); Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir.1998) (when time limit for prison's response has expired, the remedies are exhausted); see also ...