The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT CROTTY'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED (Docs. 31, 34) OBJECTIONS DUE WITHIN THIRTY DAYS
Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies
Plaintiff Steven M. Palmer ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 26, 2007. The action is proceeding on Plaintiff's Second Amended Complaint ("SAC"), filed July 15, 2008, against Defendants Crotty and Tate. Defendant Tate filed an answer to the complaint on May 27, 2009. On May 26, 2009, Defendant Crotty ("Defendant") filed a motion to dismiss for failure to exhaust, pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b). Plaintiff has not filed a response to the motion despite the Court's order issued September 3, 2009, requiring Plaintiff to do so within twenty days.*fn1 (Doc. 38.) The motion is deemed submitted.*fn2 Local Rule 78-230(m).
II. Statutory Exhaustion Requirement
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, 549 U.S. 199, 211, 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, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (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. 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. 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 and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2009). The process is initiated by submitting a CDC Form 602. Id. at § 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. at § 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. at §§ 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, 85-86, 126 S.Ct. 2378 (2006); McKinney, 311 F.3d at 1199-1201.
The events giving rise to the claims alleged against defendant Crotty occurred while Plaintiff was housed at California Correctional Institution ("CCI") in Tehachapi, California. (Doc. 16, SAC, pp. 2.) Plaintiff alleges that Defendant Crotty slammed Plaintiff into a wall, choked him, and caused him to fall down fourteen flights of steps during an escort on January 27, 2005. (Id., pp. 2-5.) Plaintiff seeks relief for use of excessive force, in violation of the Eighth Amendment of the United States Constitution.*fn3
Defendant Crotty moves for dismissal of the claim alleged against him on the ground that Plaintiff did not exhaust his administrative remedies prior to filing suit. Defendant submits evidence that Plaintiff filed six separate inmate grievances at CCI that were accepted for review between April 2002 and June 2005. (Doc. 34-2, Motion, Ex. A, Sampson Dec., ¶11, Ex. E-H.) Of those grievances, only three were filed between January 27, 2005 and June 2005. (Id.) Defendants submit evidence that none of these grievances address Plaintiff's allegations against Defendant Crotty. (Id.)
The use of force incident allegedly occurred on January 27, 2005. Grievance No. CCI-3-02-1544 was submitted on December 9, 2001, four years prior to the incident involving defendant Crotty, and does not address the claims raised against him in this civil rights action. (Id., Ex.B.)
Grievance No. CCI-3-02-1933 was submitted on May 17, 2002 and concerns an overcharge in Plaintiff's account. (Id., Ex. C.) Grievance No. CCI-7-04-03126 was submitted on December 22, 2004, again prior to the January 27, 2005 incident at issue here. (Id., Ex. D.) The grievance was denied at the second level of review and not pursued further (Id., Ex. D, H.)
Grievance No. CCI-7-05-00816, submitted March 31, 2005, is a CDC 1824 form requesting reasonable modification or accommodation, wherein Plaintiff grieves that the Ad-Seg yard is not wheelchair accessible. (Id., Ex. E.) Grievance No. CCI-05-0870, submitted April 5, 2005, relates to Plaintiff's medical care. (Id., Ex. F.) Grievance No. CCI-05-1717, submitted June 14, 2005, concerns Plaintiff's property. (Id., Ex. G.) ...