The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT KAMEL'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Clarence E. Howard ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on July 6, 2007. (Doc. 1.) This action now proceeds on the Second Amended Complaint filed on May 18, 2009, against defendant Dr. Kamel ("Defendant"), for violation of Plaintiff's rights under the Eighth Amendment and the Due Process Clause.*fn1 (Doc. 31.)
On May 5, 2010, Defendant filed a motion to dismiss this action for failure to exhaust remedies. (Doc. 40.) Plaintiff filed an opposition on July 8, 2010, and Defendant filed a reply on July 15, 2010. (Docs. 45, 46.) Defendant's motion is now before the Court.
II. PLAINTIFF'S CLAIMS AND ALLEGATIONS*fn2
Plaintiff is incarcerated at the California Correctional Institution ("CCI") in Tehachapi, California, where the events at issue allegedly occurred. Plaintiff alleges that Defendant Dr. Kamel, a psychiatrist at the prison, violated Plaintiff's constitutional rights by ordering the involuntary administration of an antipsychotic drug on July 6, 2006. Plaintiff alleges that he did not receive notice and an opportunity to be heard, and that Defendant did not obtain judicial authorization for the injection. Plaintiff denies having any psychiatric problems, taking any medication for psychiatric problems, or behaving in any manner that necessitated medication. When Plaintiff inquired where Defendant obtained the authorization to medicate him, Defendant told Plaintiff, "They let me do what I want to do around here," and left. Approximately ten minutes after Defendant informed Plaintiff that he was going to be involuntarily medicated, Plaintiff was taken to the infirmary by two sergeants, placed in five- point restraints, and injected by a nurse with Geodon, an antipsychotic medication. Plaintiff alleges that as a result of the medication, he suffered daily vomiting when eating, vision problems, muscle spasms, locking nerves in his right hand, electroencephalographic memory problems, extreme drowsiness, headaches, loss of appetite, dry mouth, and perspiration problems. Plaintiff brings claims against Dr. Kamel for violation of his rights under the Eighth Amendment and the Due Process Clause.
III. UNENUMERATED RULE 12(b) MOTION TO DISMISS FOR FAILURE TO EXHAUST
Defendant argues that Plaintiff's case should be dismissed, because Plaintiff failed to exhaust his administrative remedies before filing suit.
A. 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.
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, 315 F.3d at 1119. "[T]here can be no 'absence of exhaustion' unless some relief remains 'available.'" Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). "[A] defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of relief already granted as a result of that process." Id. at 936-37. Therefore, if some remedy is available, Plaintiff has not exhausted his remedies.
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 ...