The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING MOTION TO DISMISS FILED BY DEFENDANTS MENDOZA AND SANTOS BE GRANTED IN PART AND DENIED IN PART OBJECTIONS DUE WITHIN THIRTY DAYS (Doc. 37)
Plaintiff Whittier Buchanan, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 11, 2008. On May 9, 2009, the Magistrate Judge issued an order finding that Plaintiff's complaint states a claim against Defendant Santos for use of excessive force in violation of the Eighth Amendment and against Defendant Mendoza for retaliation in violation of the First Amendment, but does not state any other claims. 28 U.S.C. § 1915A. Plaintiff was given the option of either filing an amended complaint curing the deficiencies in his claims or notifying the Court of his willingness to proceed only on his cognizable claims. On May 22, 2009, Plaintiff filed a notice stating his willingness to proceed only on his cognizable excessive force and retaliation claims. Pursuant to the order filed on June 8, 2009, this action is proceeding on Plaintiff's Complaint, filed August 11, 2008, against Defendant Santos for use of excessive force in violation of the Eighth Amendment and against Defendant Mendoza for retaliation in violation of the First Amendment.*fn1
On February 4, 2010, Defendants Mendoza and Santos filed a motion to dismiss for failure to exhaust. Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on March 4, 2010. Defendants filed a reply on March 9, 2010. The motion has been deemed submitted. Local Rule 230(l).
Defendants argue that Plaintiff failed to exhaust his claims in compliance with 42 U.S.C. § 1997e(a), subjecting the claims to dismissal. Section 1997e(a) 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." 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 (hereinafter "CDCR") has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (West 2009). The process is initiated by submitting a CDCR Form 602 (hereinafter "CDCR 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 formal level. Id. at §§ 3084.5, 3084.6(c). 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 Defendant has 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.
2. Defendant Mendoza's Motion to Dismiss
a. Plaintiff's Allegations
In the Complaint, Plaintiff alleges that, in retaliation for Plaintiff having filed a CDCR 602, on or about July 16, 2008, Defendant Mendoza took Plaintiff's pants saying that Plaintiff had altered them and two days later told Plaintiff to sign a trust account form to pay $21.00 for altering state property. (Doc. 1, Compl., p. 7.) Plaintiff refused to sign the form as he had not altered the pants. (Id.) Two weeks later Defendant Mendoza issued a CDC 115 to Plaintiff for altering state property to which Plaintiff responded with a CDCR 602 for Defendant Mendoza falsely accusing him of altering state property. (Id.) Defendant Mendoza thereafter put a hold on Plaintiff's money until he paid the ...