FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. His March 13, 2007 amended complaint alleges that defendants violated his Eighth Amendment rights. The matter is now before the court on defendants' April 8, 2009 motion to dismiss on the grounds that plaintiff failed to exhaust available administrative remedies and that the action is untimely.
Plaintiff alleges that defendant Nurse Boncaros recommended on August 1, 2003, that his dry weight be raised from 72 kg to 75 kg and so informed defendant Nurse Awa. Am. Compl. at 4. Nurse Awa then informed defendant Dr. Al Bander that plaintiff's weight needed to be raised from 72 kg to 75 kg. Id. Dr. Al Bander authorized Nurses Boncaros and Awa to raise plaintiff's dry weight but did not examine plaintiff. Id. at 5. The increase in plaintiff's dry weight caused "fluid overload which damaged [his] heart," put "pressure on [his] ribs," and caused coughing which fractured his ribs. Id. at 4-5. The damage to his heart disqualified him from eligibility for a kidney transplant. Id. at 5. According to plaintiff, "[e]ach Defendant acted with malice and with ill care." Id. Plaintiff claims that the actions of the defendants violated his right to be free from cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. Id. at 3.
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). 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.
A. Motion to Dismiss for Failure to Exhaust
Section 1997e(a) does not require a plaintiff to plead exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Rather, "§ 1997e(a) creates a defense -- defendants have the burden of raising and proving the absence of exhaustion." Id.; see also Jones v. Bock, 549 U.S. 199, 216 (holding that failure to exhaust under the PLRA is an affirmative defense). 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 to be resolved pursuant to a motion made under "unenumerated Rule 12(b)." Wyatt, 315 F.3d at 1119. "In 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.
In Jones v. Bock, the United States Supreme Court stated where failure to exhaust may be decided on the pleadings alone, a motion under Rule 12(b)(6) is appropriate. 549 U.S.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, even when not addressed to the merits, those affirmative defenses that require the presentation of evidence outside the pleadings (which often includes the defense of failure to exhaust as required by 42 U.S.C. § 1997e(a)) must be addressed under standards that apply the procedural safeguards of Rule 56, so that disputed material factual issues and the credibility of conflicting witnesses are resolved through live testimony and not on paper. 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). 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. Additionally, the Ninth Circuit recognized in Wyatt that when the district court looks beyond the pleadings to a factual record, which commonly occurs in deciding an exhaustion motion, the court must do so under "a procedure closely analogous to summary judgment." Wyatt, 315 F.3d at 1119, n.14.
Thus, whether a motion asserting an affirmative defense such as failure to exhaust may be raised under Rule 12 or Rule 56 is not governed by whether the defense asserted in the motion goes to the "merits" of the claim. Whether judgment is sought on the merits or whether the motion seeks to bar consideration of the merits based on a technical ground that precludes reaching the merits (i.e., exhaustion, claim or issue preclusion, a statute of limitations, etc.), the determining factor is whether the factual predicate for the motion is based on the text of the pleading or instead depends upon evidence submitted with the motion. See Jones, 549 U.S. at 215 ("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.").
Here, defendants' motion requires the court to consider the affidavits and exhibits presented for the purpose of proving the absence of exhaustion. Notwithstanding the analysis above, the court recognizes that under Wyatt the instant motion is to be presented as an "unenumerated" Rule 12(b) motion to dismiss. However, the court analyzes the motion, as Wyatt suggests, under a standard "closely analogous to summary judgment." 315 F.3d at 119, n.15. If, under that standard, the court concludes ...