The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISREGARDING PLAINTIFF'S MOTIONS
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED AND ACTION BE DISMISSED WITHOUT PREJUDICE OBJECTIONS DUE WITHIN 30 DAYS
Findings and Recommendations
Plaintiff Jowell Finley ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed January 15, 2008, against Defendants Pina and Olive for violation of the Eighth Amendment. On October 29, 2009, Defendants' filed a motion to dismiss for failure to exhaust administrative remedies, pursuant to the unenumerated portion of 12(b) of the Federal Rules of Civil Procedure,. (Doc. 60.) On November 19, 2009, Plaintiff filed his opposition. (Doc. 62.) On December 2, 2009, Defendants filed their reply. (Doc. 63.) The matter is submitted pursuant to Local Rule 230(l).
On February 22, 2010, and April 5, 2010, Plaintiff filed motions seeking a ruling on Defendants' motion to dismiss. Because the Court issues the following Findings and Recommendations addressing Defendants' motion, Plaintiff's motions are HEREBY DISREGARDED.
Plaintiff contends that on November 12, 2007, Plaintiff was assaulted by his cellmate, inmate Galbart. Plaintiff contends that Defendant Olive was wanred on October 24, 2007 and October 29, 2007 that he intended to hurt Plaintiff, but that defendant Olive did not do anything. Plaintiff alleges that Defendant Pina was repeatedly informed of the threats made against Plaintiff on the day of the assault, but Defendant Pina ignored the threats. Plaintiff alleges a violation of the Eighth Amendment.*fn1
III. Failure to Exhaust Administrative Remedies
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) (per curiam). 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 curiam)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed ...