The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER STRIKING SURREPLY (Doc. 51) FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BE GRANTED AND THIS ACTION BE DISMISSED WITHOUT PREJUDICE (Doc. 36) OBJECTIONS DUE WITHIN 30 DAYS
I. Findings and Recommendations
Plaintiff Rodney Lamont Dowd ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's second amended complaint, filed on July 8, 2008, against S. Meyst, J. Teater, J. Argurraide, M. Jenan, K. Ward, A. Defosses, and McCollum for excessive force in violation of the Eighth Amendment.*fn1 On April 27, 2009, pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b), Defendants J. Teater, M. Jenan, K. Ward, A. Defosses, and M. McCollum filed a motion to dismiss based on Plaintiff's failure to exhaust available administrative remedies in compliance with 42 U.S.C. § 1997e(a). (Doc. 36, Defs.' Mot. To Dismiss.) On July 2, 2009, Plaintiff filed his opposition and supplement to his opposition after receiving an extension of time. (Doc. 47, Pl.'s Opp'n; Doc. 48, Supplement to Opp'n.)*fn2 On July 8, 2009, Defendants filed their reply to Plaintiff's opposition. (Doc. 49, Defs.' Reply.) The matter is deemed submitted pursuant to Local Rule 78-230(m).
On July 21, 2009, Plaintiff filed a document entitled, "Supplemental Writ to Attorney General's Motion to Dismiss." (Doc. 51.) This appears to be a surreply. Surreplies are not generally allowed under the Local Rules of this Court. The Court neither request nor granted permission for Plaintiff to file a surreply. Plaintiff's surreply IS HEREBY ORDERED STRICKEN.
B. Summary of Plaintiff's Second Amended Complaint
Plaintiff alleges that on August 22, 2007, while housed at Pleasant Valley State Prison, Argurraide informed Plaintiff that he would be moved to the gymnasium. Plaintiff informed Argurraide that he would rather be placed in administrative segregation. Plaintiff alleges that Defendant Teater later arrived at Plaintiff's cell and called for more officers. Defendant Defosses arrived, and Defendant Teater ordered Officer Bonner, who was at the control booth tower, to open the cell door. Defendants Defosses, Jenan, and Argurraide entered Plaintiff's cell. Plaintiff alleges that Defendant Defosses and Argurraide then grabbed Plaintiff's arm, that Defendant Defosses slammed Plaintiff on the ground, and that he and Defendant Ward sat on Plaintiff's back. Plaintiff alleges that Defendant Jenan handled Plaintiff roughly and that both Defendants Teater and Jenan were also complicit in the attack. Plaintiff alleges that Defendants Ward and McCollum snatched at Plaintiff, causing Plaintiff to dislocate his shoulder. Plaintiff alleges that Officer Meyst assisted the other correctional officers during the attack and was complicit in the assault.
C. Failure to Exhaust Administrative Remedies
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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 127 S.Ct. at 921; 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. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988) (per curiam)). 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. Wyatt, 315 F.3d 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 California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (Deering 2009). The process is initiated by submitting a CDC Form 602. Id. § 3084.2(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." Id. § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 86 (2006); McKinney, 311 F.3d at 1199-1201.
Plaintiff does not have to name each defendant in his grievance form. See Jones v. Bock, 549 U.S. 218-19 (2007) ("The level of detail necessary in a grievance to comply with the grievances procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion....
[E]xhaustion is not per se inadequate simply because an individual later sued was not named in the grievances."). The inmate appeal form CDC-602 does not require identification of specific ...