The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION RE DEFENDANTS' MOTION TO DISMISS (Doc. 92)
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Pending before the court is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). Defendant moves to dismiss this action on the ground that Plaintiff failed to exhaust his available administrative remedies prior to filing suit. Plaintiff has opposed the motion.
This action proceeds on the first amended complaint*fn1. Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Folsom State Prison, brings this civil rights action against defendant correctional officials employed by the CDCR at North Kern State Prison (one defendant is employed at Soledad State Prison). Plaintiff names the following individual defendants: Richard Early, Warden at NKSP; Associate Warden Sue Torbik; Linda Melching, Chief of Inmate Appeals; Sergeant R. Ysalva; Correctional Officer (C/O) J. A. Brown; Appeals Coordinator Jess Flores; Chief Medical Officer Robert Mekemson; Medical Technical Assistant (MTA) Jody DiGiovanna; Registered Nurse Paz-Gelacia; Sgt. Rick Fields; MTA Carroll Edgar (employed at Soledad); C/O Steve Padilla; C.O F. Grajeda; Sgt. Perry Rich.*fn2
A. Plaintiff's First Amended Complaint
Plaintiff arrived at NKSP on December 17, 1998. (Am. Compl., ¶ 1.) Upon his arrival, Plaintiff was wearing a neck brace which was prescribed at the Los Angeles County Jail. During his pretrial detention, Plaintiff was undergoing treatment for a spinal injury and high blood pressure. (Am. Compl. ¶ 2.) Plaintiff requested a push-cart from defendant Ysalva, in order to help him relocate his property. (Am. Compl. ¶ 3.) Ysalva denied Plaintiff's request, "and refused to reasonably accommodate Plaintiff's disability." (Am. Compl. ¶ 4.) Plaintiff alleges that this exacerbated a pre-existing injury, causing him to suffer pain. (Am. Compl. ¶ 5.) Ysalva ordered Plaintiff to remove his neck brace and back brace and give them to Brown. (Am. Compl. ¶ 6.) Brown confiscated Plaintiff's orthopedic braces. (Am. Compl. ¶ 7.) Plaintiff's pre-existing spinal injury worsened in the following days. (Am. Compl. ¶ 8.)
B. Defendant's Motion To Dismiss
Defendant moves to dismiss this action on the ground that Plaintiff has failed to exhaust his available administrative remedies prior to filing suit. The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution. . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. "The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009)(citing 42 U.S.C.§ 1997e(a)). "[T]he PLRA exhaustion requirement requires proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 93 (2006). This means that a prisoner must "complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)(quoting Ngo, 548 U.S. at 88).
In California, there are four levels of review - informal level, first formal level, second formal level, and third formal level. The third formal level constitutes the Director's decision on appeal. Cal. Code Regs. Tit. 15, § 3084.5(e)(2). For an appeal that is a request for accommodation, however, there is no formal level of review. Id. at 3085. An inmate must proceed to the director's level prior to filing suit. Booth v. Churner, 532 U.S. 731, 738 (2001).
A failure to exhaust administrative remedies that are not jurisdictional should be treated as a matter in abatement, which is subject to an unenumerated 12(b) motion rather than a motion for summary judgment. Wyatt v. Terhune, 315 F.3rd 1108 (9th Cir. 2003)(Wyatt III).*fn3 Pursuant to Wyatt, lack of exhaustion is an affirmative defense subject to dismissal, not a challenge to the merits of the action. A successful challenge to plaintiff's failure to exhaust, therefore, subjects the complaint to dismissal via an unenumerated 12(b) motion. In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-1120. If the court concludes that a plaintiff has not exhausted his administrative remedies, the proper remedy is dismissal of the claims without prejudice. Id.
Defendant supports his motion with the declaration of P. Biggs, Appeals Coordinator at North Kern State Prison, and exhibits A-C attached thereto. Biggs declares that when an inmate submits an appeal (including when the appeal is a request for accommodation), a record is made of that appeal in the computerized inmate/parolee appeals tracking system. This record will include information such as the date the appeal was received at each level of appeal, when a response is due, when the response is completed, and the disposition of the appeal. The inmate/parolee appeals tracking system also includes ...