The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED
OBJECTIONS, IF ANY, DUE WITHIN TWENTY ONE DAYS
Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies
Plaintiff Willie H. Knox III, 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 first amended complaint, filed November 10, 2008, against Defendants G. M. Galaza, J. Soto, F. Reynoso, E. Popper, M. Alvarez, R. P. Pear, M. Morales, D. Reese, C. Navarez, E. Crisanto, R. Reynaga, M. Wanagitis, S. Pelayo, A. Negrete, E. Hernandez, J. Parks, F. Lemos, and K. Sweeny for violation of the Eighth Amendment.*fn1
On August 6, 2009, Defendants Morales, Garcia (aka Reese), Lemos, Sweeny, Soto, Crisanto, Reynaga, Wanagitis, Pelayo, Negrete and Hernandez ("Defendants") filed a motion to dismiss for failure to exhaust, pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b). On August 20, 2009, Defendants Pear, Galaza, and Alvarez moved to join the motion to dismiss. Plaintiff filed an opposition on October 5, 2008, and Defendants filed a reply on October 8, 2009.*fn2 The matter is deemed submitted pursuant to Local Rule 230(l).The Court grants Defendants Pear, Galaza, and Alvarez's joinder.
II. Summary of Plaintiff's Eighth Amendment Claims
The events giving rise to this action occurred at Kern Valley State Prison ("KVSP") on August 9, 2005, where Plaintiff was incarcerated.(Doc. 20, Amended Complaint, ¶6.) During the morning Plaintiff was in the prison exercise yard when an emergency alarm was activated. (Id., ¶ 25) Defendants Soto, Reynoso, and Popper approached the security gate and instructed the officer at the yard to order inmates to lay in a prone position. (Id., ¶ 27.) Several inmates asked to speak with Defendants Soto, Reynoso and Popper about their concerns over laying in a prone position on the hot asphalt. (Id., ¶ 28.) Their attempts were ignored. (Id., ¶29.) After fifteen minutes, Defendant Soto called Defendant Galaza concerning the inmates' request to speak to a superior. (Id., ¶ 31.) Defendant Galaza told Defendants Soto and Reynoso to form a skirmish line. (Id.)
After approximately 25 minutes, approximately fifty (50) officers reentered the exercise yard in full riot gear. (Id., ¶ 32.) Plaintiff was sitting in the exercise yard when the skirmish line of officers entered. (Id., ¶ 33.) Plaintiff was ordered to lay in a prone position, to which Plaintiff complied. (Id.) At one point, inmate Hendricks, another inmate laying in a prone position, was ordered to crawl back to the skirmish line, and had unnecessary force used on him. (Id., ¶¶ 36-39.) Inmate Johnson and Plaintiff objected to crawling back to the skirmish line, stating that it was unsafe. (Id., ¶¶ 41-42.) Defendant Popper ordered his subordinates to use pepper-spray upon both inmates. (Id., ¶ 42.) Plaintiff was excessively sprayed by Defendants Navarez, Crisanto, Reynaga, Wanagitis, Pelayo, Negrete, and Hernandez. (Id., ¶ 43.) Plaintiff was then ordered to crawl back of his hands and feet. (Id., ¶ 45.) When Plaintiff stated that he was unable to do so because he could not see because of the pepper-spray, he was sprayed again by Defendants Pear, Navarez, Reynaga, Wanagitis, Pelayo, Negrete, and Hernandez, upon orders by Defendant Popper. (Id., ¶ 46). Defendants Popper instructed that Plaintiff be left on the hot asphalt to burn. (Id., ¶ 47.)
Defendant Alvarez then ordered Defendants Pear and Morales to drag Plaintiff to the skirmish line. (Id., ¶ 48.) Plaintiff contends that he was punched, kicked, elbowed and kneed by Defendants Pear, Morales and Reese. (Id., ¶ 49.) Plaintiff states that he was then taken to be decontaminated from the effects of the pepper-spray (Id., ¶ 51.) Plaintiff alleges that Defendants Parks, Fhemos, and Sweeny failed to ensure that Plaintiff was properly decontaminated. (Id., ¶53.) Plaintiff states that Defendants Parks, Fhemos, and Sweeny did not provide an medical treatment or pain relievers despite Plaintiff's visible burns, cuts and bruises. (Id., ¶¶ 55-56.)
III. 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 ...