The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE DENIED OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Plaintiff Carlos Hendon ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on November 30, 2005. (Doc. 1.) This action now proceeds on Plaintiff's Second Amended Complaint filed on June 26, 2008, against defendants Baroya, Pham, Hamilton, Nguyet, Hoppe, Griffin, and Reidman for subjecting him to cruel and unusual punishment in violation of the Eighth Amendment. (Doc. 18.) On November 24, 2009, defendants Baroya, Riedman, Nguyet, Griffin and Pham ("Defendants") filed a motion to dismiss this action based on Plaintiff's failure to exhaust administrative remedies.*fn1 (Doc. 42.) On December 22, 2009, Plaintiff filed an opposition to the motion. (Doc. 43.) On December 28, 2009, Defendants filed a reply to Plaintiff's opposition. (Doc. 44.) Defendants' motion to dismiss is now before the Court.
II. STATUTORY EXHAUSTION REQUIREMENT
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[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 must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001). "Proper exhaustion[, which] demands compliance with an agency's deadlines and other critical procedural rules . . . ." is required, Woodford v. Ngo, 548 U.S. 81, 90 (2006), and may not be satisfied "by filing an untimely or otherwise procedurally defective . . . appeal." Id. at 83-84.
The PLRA requires a prisoner to exhaust "such administrative remedies as are available" before suing over prison conditions. 42 U.S.C. § 1997e(a). The Booth court held that the PLRA requires administrative exhaustion even where the grievance process does not permit award of money damages and prisoner seeks only money damages, as long as the grievance tribunal has authority to take some responsive action. Booth, 532 U.S. at 732. "The meaning of the phrase 'administrative remedies ... available' is the crux of the case." Id. at 731. In discussing the meaning of the term "remedy," the court noted that "depending on where one looks, 'remedy' can mean either specific relief obtainable at the end of a process of seeking redress, or the process itself, the procedural avenue leading to some relief." Id. at 738. (emphasis added.) Thus, the court determined that the language of the statute, which requires that the "available" "remed[y]" must be "exhausted" before a complaint under § 1983 may be entertained, refers to "exhaustion" of the process available. Id. at 738-739. (emphasis added.) It follows, then, that if an inmate exhausts the process that is made available to him, he has satisfied the requirement of the statute.
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. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 215-16 (2007); 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. Id. 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.
III. SUMMARY OF THE SECOND AMENDED COMPLAINT
Plaintiff is presently a state prisoner incarcerated at the California State Prison Sacramento in Represa, California. The events at issue allegedly occurred at the California Correctional Institution ("CCI") in Tehachapi, California, when Plaintiff was incarcerated there. Plaintiff names as defendants I. Baroya (psychiatrist), and physicians Pham, Hamilton, Nguyet, Hoppe, Griffin, and Reidman. Plaintiff alleges that between the dates of June 6, 2002 and January 22, 2003, he was almost always housed in a suicide watch cell in unsanitary conditions, left nearly unclothed, with no bedding or hygienic supplies, in below-normal temperatures. Plaintiff claims that Defendants either authorized, approved of, or knowingly acquiesced in the denial of humane living conditions to Plaintiff, causing him to suffer pain and body chills. Plaintiff seeks monetary damages as relief.
IV. MOTION TO DISMISS FOR FAILURE TO EXHAUST
The Court takes judicial notice of the fact that the California Department of Corrections and Rehabilitation ("CDCR") has an administrative grievance system for prisoner complaints. Cal.Code Regs., tit. 15 § 3084.1 (2007). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). 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). 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. In order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford, 548 U.S. at 85; McKinney v. Carey, 311 F.3d. 1198, 1199-1201 (9th Cir. 2002).
Defendants argue that this action should be dismissed, without prejudice, because Plaintiff failed to exhaust the CDCR's administrative appeals process regarding his claims against the defendants to this action. Defendants submit evidence that between June 6, 2002 and January 22, 2003, the Appeals Coordinator at CCI did not receive any appeals at the first and second levels of review concerning Plaintiff's claims alleged in his complaint. (Snider Decl. ¶5.) Defendants also submit evidence that the Inmate Appeals Branch, which processes inmate appeals at the third and final level of review, with the exception of medical appeals, has no record of any appeal by Plaintiff accepted for review and exhausted at that level between June 6, 2002, the date when Defendants' alleged ...