The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED IN PART
I. Findings and Recommendation
OBJECTIONS, IF ANY, DUE WITHIN 30 / DAYS
Plaintiff Shadale L. Williams ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed July 16, 2007, against Defendants Grannis, Brubaker, Hill, Arlitz, Tyson, Spaeth, Bautista, Hedgpeth, and Lopez ("Defendants"). On July 24, 2009, Defendants filed a motion to dismiss pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b) on the ground that Plaintiff failed to exhaust administrative remedies. (Doc. 59.) On November 5, 2009, Plaintiff filed his opposition. (Doc. 63.)*fn1 The matter is deemed submitted pursuant to Local Rule 230(l).
B. Summary Of Plaintiff's Complaint
Plaintiff was formerly incarcerated at Kern Valley State Prison, where the events giving rise to this action allegedly occurred. Between the 5th and the 9th of January 2007, Defendant Lopez allegedly by an act incited a threat of force and violence against Plaintiff. On January 18, 2007, Defendant Brubaker allegedly approached Plaintiff to inform him that he would be punished if he did not stop preaching the Bible. Defendant Brubaker also allegedly by an act incited a threat of force and violence against Plaintiff. Defendant Brubaker allegedly assessed Plaintiff with a disciplinary violation. Between February 5 through February 8 of 2007, Defendant Bautista allegedly failed to act to prevent threats and acts of violence against Plaintiff, despite having prior knowledge of the threats against him. Between January 31 and February 8, Defendant Spaeth allegedly refused to treat Plaintiff during his hunger strike while he protested the deprivation of his First Amendment rights. Around January 16, 2007, Defendants Tyson and Hedgpeth allegedly warned Plaintiff to stop preaching while in his cell, but Plaintiff refused to comply. Between February 3 and February 5, Plaintiff allegedly appeared before Defendants Tyson and Hedgpeth for an institutional classification committee hearing regarding his continued preaching and hunger strike. On February 1, 2007, Defendant Hill allegedly recommended punishing Plaintiff for preaching. Between February 20 and March 2, 2007, Defendants Tyson and Arlitz allegedly reviewed the recommendations and punished Plaintiff. Between February 5 through March 2, 2007, Defendant Grannis had personal knowledge of all the preceding allegations, but failed to intervene, instruct, or guide any administrative subordinate regarding the alleged violations.
Plaintiff alleges violations of the First Amendment by Defendants Lopez, Brubaker, Hill, Tyson, Hedgpeth, and Arlitz, and violations of the Eighth Amendment by Defendants Lopez, Brubaker, and Spaeth, and supervisory liability by Defendants Grannis, Bautista, Tyson, and Hedgpeth. Plaintiff seeks as relief compensatory and punitive damages.
B. 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, 549 U.S. 199, 211 (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, 549 U.S. at 216; 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), ...