The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' (PARTIAL) MOTION TO DISMISS; DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
BEFORE THE COURT is the Moving*fn1 Defendants' Fed R. Civ. P. 12 Motion to Dismiss (Ct. Rec. 32), brought pursuant to unenumerated Rule 12(b), alleging Plaintiff's failure to properly exhaust administrative remedies as required by 42 U.S.C. § 1997(e) as to certain claims. The Plaintiff, Malik Jones, filed a timely response in opposition (Ct. Rec. 42), to which Defendants submitted a reply (Ct. Rec. 43). For the reasons discussed below, the Defendants' Motion is granted in part and denied in part. Also before the court is Plaintiff's Motion for Default Judgment (Ct. Rec. 35), which the court denies.
On November 6, 2009, Plaintiff, a California state prisoner proceeding pro se, filed an amended civil rights action (Ct. Rec. 15) seeking relief under 42 U.S.C. § 1983 for alleged excessive use of force, denial of medical care, and retaliation, as well as state tort claims for negligence and assault/battery. These numerous claims against the Defendants spawned from alleged incidents at the High Desert State Prison ("HDSP") from approximately November 17, 2007 to April 27, 2008. Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), 28 U.S.C. § 1915, Plaintiff's constitutional and state law claims in the original complaint (Ct. Rec. 1, filed December 29, 2008) were previously screened by the court on July 13, 2009 (Ct. Rec. 10), finding the following cognizable claims against various Defendants: Eighth Amendment claims for excessive force/bystander liability, deliberate indifference to medical needs, and state law assault/battery and negligence claims. Plaintiff received leave to amend his claims for failure to protect, retaliation, and denial of equal protection. Ct. Rec. 10 at 3. The First Amended Complaint (Ct. Rec. 15) reasserted the cognizable claims found in the original complaint and added new or amended claims, which were screened by the court on March 16, 2010. Ct. Rec. 18. That screening eliminated the Plaintiff's claims of retaliation, apart from a new claim of destruction of documents against Defendant McGuire. Id. at 5. New claims of negligent supervision and wrongful refusal of medical care against Defendants Robertson and Thompson, and Robertson, Lipton, David, and Mitchell, respectively, were also found cognizable by the court. Id.
The court directed service of the following claims against twenty-three total Defendants:
1. Eighth Amendment claims of excessive force/bystander liability against seventeen Defendants: Betti, Bishop, Chatham, Kimbrell, Lipton, Mitchell, Montgomery, Probst, Rigney, Stailey, Stovall, Swart, Weston, Whitlow, Williams, Wisely, and Wright. Ct. Rec. 18 at 3.
2. Eighth Amendment claim of deliberate indifference to medical needs against four Defendants: David, Lipton, Mitchell, and Robertson. Ct. Rec. 18 at 3, 6.
3. Eighth Amendment claim of failure to protect against Defendants Felker and the Director of Corrections (Ct. Rec. 18 at 3-4); as well as against Defendants Robertson, Thompson, and Wright. (Ct. Rec. 10 at 8-9, Ct. Rec. 18 at 6).
4. Retaliation claim against Defendant McGuire. Ct. Rec. 18 at 6. 6. State tort claims of negligence, assault, and battery claims against Defendants David, Lipton, and Mitchell. Ct. Rec. 18 at 3.
On July 29, 2010 the moving Defendants filed the current Motion to Dismiss (Ct. Rec. 32), arguing that Plaintiff failed to exhaust his available administrative remedies as to the "personal safety" claims of excessive force/bystander liability/failure to protect and medical indifference. The motion also requests the court to refuse to exercise supplemental jurisdiction over the pendent state law claims or dismiss them for failure to comply with the California Government Claims Act. Ct. Rec. 32 at 2. The relevant exhaustion facts are discussed within the Analysis in section (III) below.
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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."
24 U.S.C. § 1997e(a). The Supreme Court has identified two functions of the exhaustion requirement under the PLRA. First, the requirement minimizes judicial interference with prison management while giving the prison an opportunity to correct the situation before litigation commences. Woodford v. Ngo, 548 U.S. 81 (2006) (citing Porter v. Nussle, 534 U.S. 516, 525 (2002)). In Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009), the court observed, "the primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Id. at 1120 (citations omitted). Second, exhaustion aids in "reduc[ing] the quantity and improv[ing] the quality of prisoner suits." Id. (internal citation and quotation omitted). In furtherance of such goals, the Supreme Court interpreted the PLRA to require "proper exhaustion" of available administrative remedies. Ngo,548 U.S. at 90.
Exhaustion is required for all lawsuits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative process. Booth v. Churner, 532 U.S. 731, 741 (2001). In order to properly exhaust administrative remedies, an inmate must complete the administrative review process defined, not by the PLRA, but by the prison grievance process itself and comply "with an agency's deadlines and other critical procedural rules[.]" Ngo, 548 U.S. at 90-91.
To exhaust a grievance against prison staff, California prisoners must follow the appeals process provided for by the California Code of Regulations, title 15, §§ 3084.1 et seq. See Cal.Code Regs. tit. 15, § 3084.1(a) (providing that inmates may appeal "any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare."). To initiate the process, an inmate must fill out a form, Dept. of Corrections, Inmate/Parolee Appeal Form, CDC 602 ("Form 602"), that is made "readily available to all inmates." Cal.Code Regs. tit. 15, § 3084.1(c) (2004). The inmate must fill out two parts of the form: part A, which is labeled "Describe Problem," and part B, which is labeled "Action Requested." Then, within 15 days of the event complained of, the prisoner "must first informally seek relief through discussion with the appropriate staff member." The staff member fills in part C of Form 602 under the heading "Staff Response" and then returns the form to the inmate.
If the prisoner is dissatisfied with the result of the informal review, or if informal review is waived by the State, the inmate may pursue a three-step review process. See Cal.Code Regs. tit. 15, §§ 3084.5(b)-(d). California labels this three-step appeal process "formal" review. At the first level, the prisoner must fill in part D of Form 602, which states: "If you are dissatisfied, explain below." The inmate then must submit the form, together with a few other documents, to the Appeals Coordinator within 15 working days (three weeks) of the action taken. Id., § 3084.6(c). This level may be bypassed by the Appeals Coordinator in certain circumstances. Id., § 3084.5(b). Within 15 work-days after an inmate submits an appeal, the reviewer must inform the inmate of the outcome by completing part E of Form 602 and returning the form to the inmate.
If the prisoner receives an adverse determination at this first level, or if this level is bypassed, the inmate may proceed to the second level of review conducted by the warden. Id., §§ 3084.5(c), (e)(1). The inmate does this by filling in part F of Form 602 and submitting the form within fifteen work-days of the prior decision. Within ten working days thereafter, the reviewer provides a decision on a letter that is attached to the form. If the prisoner's claim is again denied or the prisoner otherwise is dissatisfied with the result, the prisoner must explain the basis for his or her dissatisfaction on part H of the form and mail the form to the Director of the California Department of Corrections and Rehabilitation within 15 working days. Id., § 3084.5(e)(2). An inmate's appeal may be rejected where "[t]ime limits for submitting the appeal are exceeded and the appellant had the opportunity to file within the prescribed time constraints." Id., § 3084.3(c)(6). Woodford v. Ngo, 548 U.S. 81, 85-86 (2006). Generally, completion of the third level, the Director's Level of Review, exhausts the remedy. Cal.Code Regs. tit. 15, § 3084.1(a).
B. Standard for Unenumerated Rule 12 Motion
The failure to exhaust administrative remedies under the PLRA is treated as a matter in abatement and is properly raised in an unenumerated Rule 12(b) motion. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 124 S.Ct. 50 (2003). Exhaustion is an affirmative defense; establishing exhaustion of administrative remedies under the PLRA is not a pleading requirement or a jurisdictional prerequisite. Wyatt, 315 F.3d at 1119. Therefore, Defendants bear the burden of proving that the Plaintiff had available administrative remedies that he did not utilize. Id. "In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119-20. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust-a procedure closely analogous to summary judgment-then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120, n. 14. Should the court find that the prisoner has not exhausted non-judicial remedies through the California appeal process, the claim should be dismissed without prejudice. Id. at 1119-20.
Defendants contend that Plaintiff failed to exhaust his administrative remedies as required by the PLRA. Defendants motion only pertains to Plaintiff's "personal safety" and medical indifference claims. Plaintiff's "personal safety" claims (i.e. excessive force/bystander liability/failure to protect), as well as his ...