The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FILED BY DEFENDANTS J. HARDEN, M. AGUILAR, E. CHESLEY, AND G. GARZA (Doc. 46)
Plaintiff Nicolas Moran 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 January 3, 2008. On May 15, 2009, pursuant to 28 U.S.C. § 1915A, the Court issued an order that this action shall proceed as one for damages on Plaintiff's second amended complaint, filed November 18, 2008, against (1) Defendants Do, Moreno, Perez, Garza, and Hill for use of excessive force in violation of the Eighth Amendment, arising from two incidents on November 22, 2006; and (2) Defendants Harden, Chesley, and Aguilar for endangering Plaintiff's safety in violation of the Eighth Amendment, arising out housing Plaintiff and inmate Kor together on August 31, 2007.*fn1
On December 7, 2009, Defendants M. Aguilar, E. Chelsey, G. Garza, and J. Harden filed a motion to dismiss for failure to exhaust. Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on January 21, 2010. Defendants filed a reply on February 8, 2010. Plaintiff filed a "counter-reply to Defendants' reply" on February 22, 2010. The motion has been deemed submitted. Local Rule 230(l).
Defendant argues 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 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. 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.
Plaintiff alleges that on August 31, 2007, Defendants Harden, Chesley, and Aguilar forced him to live with a gay inmate despite knowing they were not compatible because inmate Kor was a general population inmate and Plaintiff was a protective custody inmate. (Doc. 20, 2nd Amend. Comp., ¶42.) Plaintiff and inmate Kor's differences were brought to the attention of Defendants Harden, Chesley, and Aguilar, but were disregarded. (Id.) On September 23, 2007, inmate Kor falsely accused Plaintiff of raping him, which led to disciplinary measures against Plaintiff. (Id., ¶44.)
Plaintiff alleges that, twice on November 22, 2006, Defendant Garza and others placed him in a choke-hold, and struck, beat, and ...