The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE DENIED (Doc. 41) OBJECTIONS, IF ANY, DUE WITHIN 20 DAYS
Findings and Recommendations
Plaintiff Garrison S. Johnson ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). 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 May 8, 2008, against Defendants G. Ybarra, Powell, Curliss, Velasquez, J. Gonzalez*fn1 , S. Cunningham, Medrano, Holguin, A. Dunnahoe, and V. Ybarra. On November 6, 2009, Defendants G. Ybarra, Powell, Curliss, Velasquez, and J. Gonzalez filed a motion to dismiss pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b) for Plaintiff's failure to exhaust administrative remedies. (Doc. 41, Mot. To Dismiss.) On November 23, 2009, Plaintiff filed his opposition. (Doc. 44, Opp'n.) No reply was filed. The matter is submitted pursuant to Local Rule 230(l).
Plaintiff alleges the following. He was transferred from Corcoran State Prison to California Correctional Institution in January 2006. The defendant guards discovered Plaintiff's role in the 1995 lawsuit that led to the abolishment of CDCR's practice of using racial segregation in double man cells. On March 17, 2007, Defendant Dunnahoe removed Plaintiff from his cell while Plaintiff was handcuffed. Defendant Dunnahoe slammed Plaintiff into the ground without provocation. Defendant V. Ybarra began striking Plaintiff with her baton. Defendants Cunningham and Medrano emptied their pepper spray canisters into Plaintiff's face and eyes. Defendant Holguin pushed Plaintiff's head twice into the wall.
After Plaintiff was placed in a holding cell, Defendant Holguin ordered Plaintiff to put his cuffed hands through the foodport in order to remove the handcuffs. Defendant Holguin then squeezed the handcuffs extremely tight around Plaintiff's wrists and began bending the wrists. When Plaintiff cried out in pain, Defendant Velasquez emptied his pepper spray canister into Plaintiff's eyes. Plaintiff suffered head trauma and pain, a swollen left eye, swollen wrists, and vision impairment.
After the incident Defendants Curliss and J. Gonzalez ordered Plaintiff to strip naked and hosed the pepper spray from his eyes. Plaintiff was not permitted to shower the rest of his body for three days, leaving Plaintiff's entire body on fire. Plaintiff informed Defendant Powell that his hands were swollen from the too-tight cuffs and that his body was burning from the pepper spray. Defendant Powell failed to summon immediate medical care.
Defendants Dunnahoe, V. Ybarra, and G. Ybarra filed a false rule violation and crime incident report that claimed Plaintiff struck Defendant Dunnahoe in the chest and grabbed Defendant Holguin's arm through the foodport. Plaintiff was placed in administrative segregation for false charges of battery on a peace officer.
III. Exhaustion Of 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). 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 ...