The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT MUNOZ'S MOTION TO DISMISS BE GRANTED (Doc. 29)
THIRTY-DAY OBJECTION DEADLINE
Findings and Recommendation on Defendant's Motion to Dismiss
Plaintiff Daniel R. Perez is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February 15, 2008. The Court screened Plaintiff's amended complaint pursuant to 28 U.S.C. § 1915A, and found that it states a claim against Defendants Olmos, Perez, Sanchez, Paz, and Munoz for use of excessive physical force, against Defendant Munoz for the unconstitutional conditions of confinement in cell 232, and against Defendants Marquez, Jimenez, Haines, and Talle for denial of medical care.*fn1 Fed. R. Civ. P. 8(a); Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007); Alvarez v. Hill, 518 F.3d 1152, 1157-58 (9th Cir. 2008). On September 11, 2009, Defendant Munoz filed a motion to dismiss Plaintiff's claim against him for the unconstitutional conditions of confinement in cell 232 for Plaintiff's failure to exhaust the administrative remedies. Fed. R. Civ. P. 12(b). On October 5, 2009, Plaintiff filed an opposition.*fn2 Local Rule 230(l). Defendant Munoz filed a reply on October 9, 2009.
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 (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, 435 U.S. 516, 532 (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 (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, 549 U.S. at 211-12; 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 Defendant Munoz, Plaintiff was incarcerated at California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California. (Doc. 15, 1st Amd. Comp.)
Plaintiff alleges that after refusing to accept a cellmate who was a danger to him, he was placed in cell 232 by Defendant Munoz as punishment. The cell was located in a unit for mental health patients on medication and Plaintiff was subjected to loud noises day and night. Plaintiff alleges that inmates without mental health issues are not supposed to be housed in that unit, and he was unable to sleep, read, or think for many days, which included days he was in court. (Id. at pp. 6-8.)
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 must "'alert the prison to the nature of the wrong for which redress is sought'" and "'provide enough information, ... to allow prison officials to take appropriate responsive measures'" Griffin at 1120 (quoting Strong v. David, 297 F.3d ...