The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED
OBJECTION DUE WITHIN THIRTY DAYS
Plaintiff Charles James Mauldin ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's June 26, 2009 Second Amended Complaint. Plaintiff alleges that Defendants Nason and Vargas violated his Eighth Amendment rights by failing to intervene when Plaintiff was attacked by another prisoner. Defendant Vargas was served with the Second Amended Complaint on June 7, 2010*fn1 and filed a Motion to Dismiss on June 28, 2010 [ECF No. 37] on the ground that Plaintiff had failed to exhaust his available administrative remedies. Plaintiff filed an opposition on July 22, 2010, and Defendant filed a reply on July 27, 2010. (ECF Nos. 28 & 39.)
II. EXHAUSTION REQUIREMENT
Defendant argues that Plaintiff failed to exhaust his claims as required by 42 U.S.C. § 1997e(a) and as a result left them subject 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 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, 121 S.Ct. 1819 (2001). 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).
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, 126 S.Ct. 2378 (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). Failure to exhaust non-jurisdictional, non-judicial, administrative remedies 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.
The above-captioned action arises out of a January 21, 2004 incident in which Plaintiff was attacked by another inmate. Plaintiff alleges that Defendants Nason and Vargas, who are prison guards at Avenal State Prison, failed to intervene and stop the attack in a timely manner. Plaintiff requests compensatory and punitive damages for the alleged constitutional violation.
An inmate grievance is initiated by filing CDCR 602. Once the 602 is submitted to the institution's appeals coordinator, it is screened for compliance with the criteria set forth in the California regulations. If a 602 does not comply with regulations, the appeals coordinator generates a CDC-695 stating what corrections are required and attaches it to the grievance. These two documents are then returned to the prisoner; the appeals coordinator does not keep a copy. This process is called "screening out" a grievance.
In the instant Motion, Defendant alleges that dismissal is proper because Plaintiff failed to submit any inmate grievances related to the January 21, 2004 incident. Defendant relies on Plaintiff's inmate grievance log showing that no appeals filed by Plaintiff were processed for review between May 23, 2003 and April 14, 2004. (ECF No. 37-2 & 37-3.) Defendant admits that Plaintiff initiated a number of appeals during that time period but alleges that they were all screened out for failure to comply with departmental regulations. (Id.) The evidence supports Defendant's contentions.
Plaintiff opposes the motion and claims that he filed a 602 based on the January 21 attack but was "stonewalled" and his appeal was never processed. (ECF No. 38.) In support of this contention, Plaintiff has attached two 602s: one date-stamped as received in the ASP appeals office on February 3, 2004 (hereafter "the February 602"), the other date-stamped as received in ...