FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He proceeds on his February 22, 2008, amended complaint against defendants Lozano, Ballesteros, Carey, Hill and Sandy. On September 12, 2008, Ballesteros and Carey moved to dismiss this action on the grounds that plaintiff failed to state a claim upon which relief can be granted and that plaintiff failed to exhaust administrative remedies as to his claim against Carey. See Fed. R. Civ. P. 12(b)(6); Wyatt v. Terhune, 305 F.3d 1035, 1044 (9th Cir. 2002). Plaintiff opposed the motion on September 23, 2008. For the reasons stated below, the court finds that defendants' motion must be denied to the extent defendants argue plaintiff failed to exhaust, but granted on the ground that plaintiff failed to state a claim upon which relief can be granted.
Plaintiff alleges that Carey, Warden of California State Prison, Solano, failed to properly instruct his staff, causing plaintiff to be exposed to second-hand smoke and resulting in a heart attack and triple bypass surgery. Am. Compl. ("Compl.") at 2. Specifically, plaintiff alleges that on March 15, 2005, Sandy forced plaintiff to be housed with a chain smoker despite medical records documenting plaintiff's life-threatening allergy to nicotine, condition of high blood pressure, and need to be housed free of tobacco and smoke. Id. Additionally, despite plaintiff's requests, Hill purportedly refused to separate plaintiff from his chain smoking cellmate. Id. at 3. Plaintiff alleges Sandy showed further disregard for his medical condition by ordering that he be placed in administrative segregation and charging him with attempted murder after he attempted to get "rid . . . [of] the life threatening situation" himself. Id. at 2.
Next, plaintiff alleges that on March 22, 2005, Ballesteros entered into plaintiff's prison file information that was unauthorized and false and which was later used to find plaintiff guilty of attempted murder. Id. at 3. Plaintiff also asserts that Ballesteros classified an inmate witness as a "reliable source", thereby allegedly rendering this witness inaccessible for cross examination by plaintiff. Id.
On May 23, 2005, Lozano found plaintiff guilty of attempted murder and sentenced plaintiff to 15 months in the Security Housing Unit at Corcoran State Prison. Id. Plaintiff alleges that Lozano precluded plaintiff from presenting his requested staff witness, confronting his accuser, and cross-examining the inmate witness. Id. at 4.
II. Failure to Exhaust Administrative Remedies
Defendants argue that Carey is entitled to dismissal because plaintiff failed to exhaust available administrative remedies. Defs.' P. & A. in Supp. of Mot. to Dism. ("Defs.' P. & A.") at 9. Defendants concede that plaintiff "has exhausted  his claims that he did not receive due process during the rules violation hearing and that he was wrongfully housed in a cell with a chronic smoker despite having a documented medical condition requiring that he be housed free of tobacco and its smoke." Id. at 8. However, they contend that "[p]laintiff has not filed any appeal that could even potentially put the prison on notice that he has claims against Warden Carey for insufficient supervision," and therefore, has not exhausted the inmate appeals process as to his claim against Carey. Id. at 8-9. In support of their contentions, they submit the declarations of N. Grannis, the Chief at the Inmate Appeals Branch, and S. Cervantes, the Appeals Coordinator at California State Prison, Solano.
The Prison Litigation Reform Act of 1995 ("PLRA") provides that "[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, 315 F.3d at 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*fn1 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. However, in doing so, care must be taken to heed the safeguards under Rule 56 to determine whether a genuine issue of fact warrants the resolution of a witness' or witnesses' credibility over material disputes through live testimony so that credibility is not determined on paper.
The United States Supreme Court expressly stated in Jones v. Bock, 549 U.S. 199, 216 (2007), that failure to exhaust under the PLRA is an affirmative defense. 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 analogized to a motion to dismiss based on a statute limitations defense and stated:
A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract.
But, affirmative defenses which require the presentation of evidence outside the pleadings (including failure to exhaust as required by 42 U.S.C. § 1997e(a)) are properly considered on summary judgment, with genuine disputes over facts material to the outcome of the motion reserved for either an evidentiary hearing or trial.*fn2 Fed. R. Civ. P. 12(d) (where a party presents affidavits or other matters outside the pleadings in support of its motion, the court must treat the motion "as one for summary judgment under Rule 56"), 56(b); Panero v. City of North Las Vegas, 432 F.3d 949, 952 (9th Cir. 2005).*fn3 The Court in Jones made clear that, "beyond the departures specified by the PLRA itself," nothing in the PLRA suggests that usual procedural practices should not be followed and noted that departures from the usual procedural requirements are to be expressly made by Congress. Jones, 549 U.S. at 212, 214-16. In this regard, the Ninth Circuit recognized in Wyatt ...