The opinion of the court was delivered by: Kent J. Dawson United States District Judge
Currently before the Court is Defendants' Warden Tom Felker ("Felker") and Captain Wright's Motion to Dismiss (##21 and 22). Plaintiff Liberado Fortanel ("Fortanel" or "Plaintiff") filed an Opposition (#24), to which Defendants filed a Reply (#25). Subsequently, Plaintiff filed his Responsive Brief in Opposition (#26).
Plaintiff, Fortanel, II is a California state prisoner proceeding in forma pauperis, who filed a Complaint on June 23, 2008, against High Desert State Prison ("HDSP") Warden Tom FeLker, and Captain Wright, alleging constitutional claims under 42 U.S.C. § 1983. Specifically, Plaintiff alleges that on May 21, 2007, while housed in the gym at HDSP, he was injured during a riot caused by severe overcrowding.
According to Plaintiff, during the riot-of which he claims he was not a participant-a block gun was discharged and he was struck in the eye, causing him severe pain and injury. Plaintiff's Complaint describes the overcrowded conditions of the HDSP gym, including the close vicinity of the bunks and the wait to use the restroom. Plaintiff does not aver that Felker or Wright were involved in the riot, but alleges that they acted with deliberate indifference, because they were aware of the escalation in violence and tension between inmates caused by overcrowding, and failed to act to remedy the conditions.
Plaintiff attaches three documents to his complaint demonstrating that, in October 2007, he made three attempts to file an administrative grievance at the first level of review regarding the May 21, 2007 riot. Each of Plaintiffs grievances were rejected because Plaintiff waited nearly five months to file them, in violation of California Code of Regulations, Title 15, section 3084.6(c), which requires the inmate to submit an appeal within fifteen days of an alleged incident. According to Plaintiff, he subsequently attempted twice to file the grievance with the Director's level of review. Said appeals were rejected however, for a failure to complete the lower levels of review, and because the appeal had been rejected at the lower levels of review, respectively.
Defendants seek that the Court dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b) for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997(e), and for failure to state a claim upon which relief can be granted under Rule 12(b)(6).
II. Motion to Dismiss for Failure to Exhaust Administrative Remedies
A motion to dismiss for failure to exhaust non-judicial remedies is treated as an unenumerated 12(b) motion. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. See id. at 1119-20, citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988). If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. See id. at 368 n. 3 (1988).
In this case, Defendants assert that Plaintiff has not exhausted his non-judicial remedies, because (1) Plaintiff failed to file his formal grievance within fifteen (15) days of the alleged incident, and (2) Plaintiff failed to appropriately utilize the grievance procedures. Plaintiff responds by asserting (1) that his ability to file an administrative grievance was impeded by staff at HDSP and California State Prison, Solano (SOL), who inappropriately screened out his appeals; (2) that he is not required to exhaust administrative remedies because doing so would be futile; and (3) that factual allegations must exist because courts have held overcrowding to be unconstitutional. (Pl.'s Opp'n.) The Court agrees with Defendants.
III. Failure to Exhaust Administrative Remedies
Under the Prison Litigation Reform Act ("PLRA") 42 U.S.C. § 1997e(a), "[n]o action shall be brought with respect to prison conditions under section [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." Under this Rule, prisoners must complete the prison's administrative grievance process regardless of the relief offered. Booth v. Churner, 532 U.S. 731, 741 (2001). "Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit." Id. at 741. According to the Supreme Court, the purpose of section 1997e(a) was to "reduce the quantity and improve the quality of prisoner suits . . . [to] afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 U.S. 516, 524--25 (citing Booth v. Churner, 532 U.S. at 737). If the district court concludes that an inmate has failed to exhaust non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. See Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d at 368 n. 3 (9th Cir. 1988).
A. California's Administrative Remedy Procedures
California's administrative appeal system for inmates is described in Title 15 of the California Code of Regulations. Under the Code, "[a]ny inmate or parolee under the [California Department of Correction's] jurisdiction may appeal any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal. Code Regs. Title 15, § 3084.1(a). In order to exhaust administrative remedies within this system, a prisoner must proceed through several levels of appeal, including: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate ...