The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED (Doc. 22.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Plaintiff Michael Contreraz aka Lofofora Eva Contreraz ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at the California Substance Abuse Treatment Facility in Corcoran, California ("SATF"), where the events at issue allegedly occurred. Plaintiff filed the complaint commencing this action on December 14, 2006. (Doc. 1.) This action now proceeds on Plaintiff's First Amended Complaint filed on February 3, 2009, against defendants Correctional Officer ("C/O") Davis, C/O Carlos, and C/O Stockbridge*fn1 for use of excessive force against Plaintiff in violation of the Eighth Amendment, and against Sergeant Franco and Lieutenant Rodriguez for failure to prevent the use of excessive force against Plaintiff.*fn2 (Doc. 17.) On August 17, 2009, Defendants Stockbridge and Rodriguez ("Defendants") filed a motion to dismiss this action for failure to exhaust administrative remedies.*fn3
(Doc. 22.) On November 23, 2009, Plaintiff filed an opposition to the motion. (Doc. 28.) On December 21, 2009, Defendants filed a reply to Plaintiff's opposition. (Doc. 32.) Defendants' motion to dismiss is now before the Court.
II. STATUTORY EXHAUSTION REQUIREMENT
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[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 must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001). "Proper exhaustion[, which] demands compliance with an agency's deadlines and other critical procedural rules . . . ." is required, Woodford v. Ngo, 548 U.S. 81, 90 (2006), and may not be satisfied "by filing an untimely or otherwise procedurally defective . . . appeal." Id. at 83-84.
The PLRA requires a prisoner to exhaust "such administrative remedies as are available" before suing over prison conditions. 42 U.S.C. § 1997e(a). The Booth court held that the PLRA requires administrative exhaustion even where the grievance process does not permit award of money damages and prisoner seeks only money damages, as long as the grievance tribunal has authority to take some responsive action. Booth, 532 U.S. at 732. "The meaning of the phrase 'administrative remedies ... available' is the crux of the case." Id. at 731. In discussing the meaning of the term "remedy," the court noted that "depending on where one looks, 'remedy' can mean either specific relief obtainable at the end of a process of seeking redress, or the process itself, the procedural avenue leading to some relief." Id. at 738. (emphasis added.) Thus, the court determined that the language of the statute, which requires that the "available" "remed[y]" must be "exhausted" before a complaint under § 1983 may be entertained, refers to "exhaustion" of the process available. Id. at 738-739. (emphasis added.) It follows, then, that if an inmate exhausts the process that is made available to him, he has satisfied the requirement of the statute.
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. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 215-16 (2007); 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. Id. 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.
III. SUMMARY OF THE FIRST AMENDED COMPLAINT
Plaintiff is a state prisoner at SATF, where the acts he complains of occurred. Plaintiff names as defendants Sergeant L. Franco, Lieutenant F.A. Rodriguez, and Correctional Officers J. Stockbridge, Davis, and T. Carlos. Plaintiff alleges that on June 27, 2004, he had just bathed in his cell and was sitting unclothed on the lower bunk in low lighting when C/O Stockbridge (female) observed him while counting inmates. The next day, as he was going for a meal, C/O Stockbridge stopped Plaintiff and told him that he had better be dressed when she came by his cell. Plaintiff explained he had just bathed and meant no offense. C/O Stockbridge responded with profanities. Plaintiff told C/O Stockbridge that she could expect to experience incidental nudity in the course of her duties, and that she should talk to her supervisor if she was overly bothered. After eating and upon exiting the dining hall, C/O Stockbridge had C/O's Davis and Carlos handcuff Plaintiff and place him in a holding cage, stripped of all clothing, for an hour, before being presented to Sergeant Franco and Lieutenant Rodriguez in the latter's office. In the office, Plaintiff was accused of "flashing" C/O Stockbridge and instructed (with obscenities) to apologize to her or be placed in solitary confinement. When Plaintiff denied the accusation and declined to apologize, C/O's Davis and Carlos jerked Plaintiff to his feet and purposely pressed his arms back so as to inflict pain. C/Os Davis and Carlos held Plaintiff still while C/O Stockbridge squeezed Plaintiff's groin so as to inflict pain. Ultimately Plaintiff apologized and was allowed to leave Lt. Rodriguez's office. Afterwards, C/O's Davis and Carlos laughed at Plaintiff. Plaintiff seeks monetary damages as relief.
MOTION TO DISMISS FOR FAILURE TO EXHAUST
The Court takes judicial notice of the fact that the California Department of Corrections and Rehabilitation ("CDCR") has an administrative grievance system for prisoner complaints. Cal.Code Regs., tit. 15 § 3084.1 (2007). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). 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). 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. In order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford, 548 U.S. at 85; McKinney v. Carey, 311 F.3d. 1198, 1199-1201 (9th Cir. 2002).
Defendants argue that this action should be dismissed in its entirety, because Plaintiff failed to exhaust the CDCR's administrative appeals process regarding his claims against the defendants to this action. (MTD at 5 ¶3.) Defendants submit evidence that the SATF Appeals Office has no record of any inmate appeal filed by Plaintiff at any level of the inmate appeal process regarding any of the events alleged in the First Amended Complaint or against any of the defendants to this action. (Gomez Decl. ¶6.) Defendants also submit evidence that the Inmate Appeals Branch, which processes inmate appeals at the Director's Level, has no record of any appeal by Plaintiff accepted at that level concerning ...