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 GRANTED OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Ricardo Edwin Lanier ("Plaintiff") is a prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action now proceeds with the original Complaint filed by Plaintiff on July 10, 2009, against defendants R. Rodriguez, T. D. Beckner, and L. E. Papillion ("Defendants"), for use of excessive force in violation of the Eighth Amendment.*fn1 On April 30, 2010, Defendants filed a motion to dismiss this action under Rule 12(b) for failure to exhaust administrative remedies. (Doc. 25.) On May 11, 2010, Plaintiff filed an opposition to the motion. (Doc. 29.) On May 18, 2010, Defendants filed a reply to Plaintiff's opposition. (Doc. 30.) Defendants' motion is now before the Court.
II. PLAINTIFF'S CLAIMS AND ALLEGATIONS*fn2
The events at issue in this action occurred at the California Correctional Institution in Tehachapi, California, where Plaintiff is presently incarcerated. Plaintiff alleges that on May 22, 2009, he covered his cell window to protest an earlier cell search in which various items of his personal property were confiscated despite the fact that they were not contraband. Defendant Beckner, a correctional officer, stood outside of Plaintiff's cell and after the two exchanged heated words, Plaintiff heard footsteps, the tray slot to his door was opened by Defendant Rodriguez, and Defendant Papillion sprayed pepper spray into the cell. Plaintiff complied with orders and was removed from his cell. Defendant Beckner slapped and punched Plaintiff, and tried to provoke him, unsuccessfully. Once Plaintiff was escorted out of the pod and was out of view of other inmates, Defendant Beckner thrust Plaintiff against a wall, which caused a minor contusion on Plaintiff's upper lip. Defendant Beckner continued to slap and punch Plaintiff as he was escorted outside and to the medical clinic, where he was placed in a holding cell. Plaintiff claims Defendants used excessive physical force against him in violation of the Eighth Amendment.
III. UNENUMERATED RULE 12(b) MOTION TO DISMISS FOR FAILURE TO EXHAUST
Defendants argue that Plaintiff's allegations against them should be dismissed, because Plaintiff failed to exhaust his administrative remedies.
A. Statutory Exhaustion Requirement
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 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 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). 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 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.
B. CDCR's Administrative Grievance System
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 § ...