ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. Defendant McGuire (defendant) is an employee of the California Department of Corrections and Rehabilitation (CDCR) at High Desert State Prison. Defendant's motion to dismiss is before the court.
Defendant requests that plaintiff's sur-reply regarding the motion be stricken. Sur-replies concerning motions are generally not permitted, and plaintiff did not seek leave to file a sur-reply. See Local Rule 230(l). Therefore, the sur-reply will not be considered.
This action is currently proceeding against defendant for an alleged violation of the Eighth Amendment. Plaintiff asserts defendant failed to protect him from an inmate assault occurring on January 31, 2007. Am. Compl. ¶ 24.
Defendant asserts plaintiff's complaint must be dismissed because plaintiff failed to exhaust administrative remedies with respect to his claim before filing suit. A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 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. Id. at 1120. If the district court concludes the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Id.
The Prison Litigation Reform Act provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). California prison regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a prisoner has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All steps must be completed before a civil rights action is filed, unless a plaintiff demonstrates a step is unavailable to him. Exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied sub nom, Alameida v. Wyatt, 540 U.S. 810 (2003).
Defendant presents evidence indicating plaintiff did not exhaust the
prisoner grievance procedure with respect to the claim remaining in
this action.*fn1 Specifically, plaintiff did not file
any lower level or Director's Level appeal regarding any alleged
failure to protect. See Decl. of W.N. Grannis & Ex. A; Decl. of T.
Robertson & Ex. A. Plaintiff counters that he did file a grievance
concerning defendant and the events of January 31, 2007. Exhibit A
attached to plaintiff's opposition appears to be a copy of the
grievance, dated November 28, 2007. See Opp'n at 14-15.*fn2
The grievance was screened out because it was filed well
beyond the 15-day time limit for initiating an appeal. Cal. Code Regs.
tit. 15, § 3084.6(c).*fn3 The Supreme Court has held
that an agency's deadlines generally must be complied with to effect
proper exhaustion of administrative remedies. Woodford v. Ngo, 548
U.S. 81, 90 (2006). Because plaintiff filed his grievance after the
deadline, without providing an explanation to excuse the timeliness
requirement, and because he fails to point to anything else suggesting
he properly exhausted administrative remedies with respect to his
Eighth Amendment claim remaining in this action, this action must be
In light of the foregoing, the court need not reach defendant's argument that this action should be dismissed for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motion to strike plaintiff's sur-reply (docket #30) is granted;
2. Plaintiff's October 19, 2010 sur-reply regarding defendant's motion to dismiss is stricken; and
3. The Clerk of the Court assign a district court judge to this case. IT IS ...