The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS ESCOBARA, PENNYWELL, MCGREW, AND LAWHORN'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED (Doc. 170) THIRTY-DAY OBJECTION DEADLINE
Findings and Recommendation on Defendants' Motion to Dismiss
Plaintiff Keith Blackwell, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 20, 2005. This action is proceeding on Plaintiff's second amended complaint, filed July 5, 2007, against Defendants Vo, Escobar,*fn1 Pennywell, McGrew-Reese,*fn2 and Lawhorn under section 1983 for acting with deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment. On September 28, 2009, Defendants Escobar, Pennywell, McGrew-Reese, and Lawhorn filed their second motion to dismiss for failure to exhaust the administrative remedies.*fn3*fn4 Fed. R. Civ. P. 12(b). Plaintiff did not file an opposition.*fn5 Local Rule 230(l).
The exhaustion provision of the Prison Litigation Reform Act of 1995 provides that "[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).
The California Department of Corrections and Rehabilitation (CDCR) has an administrative grievance system for inmates' complaints regarding conditions of confinement. Cal. Code Regs., tit. 15 § 3084.1 (West 2009). The process is initiated by submitting a CDCR 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 or second formal level. Id. at §§ 3084.5, 3084.6(c).
CDCR also has a process which allows inmates with disabilities to request a reasonable modification or accommodation by submitting a CDCR Form 1824. Id. at § 3085(a). Inmates may appeal any decision they are dissatisfied with by attaching the 1824 form to a 602 appeal form and submitting it to the second formal level of review. Id. § at 3085(b). 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.
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.
At the time of the events relevant to Plaintiff's claim against Defendants Escobar, Pennywell, McGrew-Reese, and Lawhorn, Plaintiff was incarcerated at Avenal State Prison (ASP), where Defendants were members of the Unit Classification Committee (UCC). (Doc. 76, 2nd Amend. Comp., court record pp. 6-7.) Plaintiff alleges that between November 2004 and June 2005, Defendants held approximately five classification hearings at which they violated his rights under the Eighth Amendment by delaying his medically ordered transfer to another prison, despite being aware of Plaintiff's medical condition. (Id.)
In order to satisfy the exhaustion requirement, prisoners are required to comply with the applicable procedural rules governing the appeals process, and it is the appeals process itself which defines the level of detail necessary in an appeal. Jones, 549 U.S. at 218; Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). In California, prisoners are required only to describe the problem and the action requested. Tit. 15 § 3084.2(a). Therefore, the appeal is sufficient "'if it alerts the prison to the nature of the wrong for which redress is sought,'" Griffin at 1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002) and adopting the Strong standard), which "advances the primary purpose of . . . notify[ing] the prison of a problem," id. (citation omitted).
Here, Plaintiff's Eighth Amendment claim arises from his allegation that from November 2004 to June 2005, Defendants acted with deliberate indifference to his serious medical needs by delaying his medical transfer from ASP, which had been ordered by Doctors Reed and Harrison.*fn6
(2nd Amend. Comp., c.r. pp. 6-7.) Defendants argue that Plaintiff failed to exhaust his claim against them, ...