The opinion of the court was delivered by: Dennis L. United States Magistrate Judge
FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANTS' MOTIONS TO DISMISS BE GRANTED AND ACTION BE DISMISSED WITHOUT PREJUDICE (DOCS. 59, 63) OBJECTIONS DUE WITHIN TWENTY-ONE/ DAYS
Findings And Recommendation
Plaintiff Willie H. Knox, III ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court are Defendants F. Lemos, K. Sweeny, and E. Popper's motion to dismiss, filed March 29, 2010 and April 8, 2010.*fn1 Defs.' Mot. Dismiss, Docs. 59, 63. Defendants C. Navarez and F. Reynoso filed a joinder to Defendants' motions to dismiss on June 29, 2010. Doc. 70. Plaintiff did not file a timely opposition to the Defendants' motions to dismiss. *fn2 The matter is submitted pursuant to Local Rule 230(l).
II. Summary of Plaintiff's Eighth Amendment Claims
The events giving rise to this action occurred at Kern Valley State Prison ("KVSP") on August 9, 2005, where Plaintiff was incarcerated.Doc. 20, Amended Complaint, ¶6. During the morning Plaintiff was in the prison exercise yard when an emergency alarm was activated. Id. ¶ 25. Soto, Defendant Reynoso, and Defendant Popper approached the security gate and instructed the officer at the yard to order inmates to lay in a prone position. Id. ¶ 27. Several inmates asked to speak with Soto, Defendant Reynoso, and Defendant Popper about their concerns over laying in a prone position on the hot asphalt. Id. ¶ 28. Their attempts were ignored. Id. ¶29. After fifteen minutes, Soto called Galaza concerning the inmates' request to speak to a superior. Id. ¶ 31. Galaza told Soto and Defendant Reynoso to form a skirmish line. Id.
After approximately 25 minutes, approximately fifty (50) officers reentered the exercise yard in full riot gear. Id. ¶ 32. Plaintiff was sitting in the exercise yard when the skirmish line of officers entered. Id. ¶ 33. Plaintiff was ordered to lay in a prone position, to which Plaintiff complied. Id. At one point, inmate Hendricks, another inmate laying in a prone position, was ordered to crawl back to the skirmish line, and had unnecessary force used on him. Id. ¶¶ 36-39. Inmate Johnson and Plaintiff objected to crawling back to the skirmish line, stating that it was unsafe. Id. ¶¶ 41-42. Defendant Popper ordered his subordinates to use pepper-spray upon both inmates. Id. ¶ 42. Plaintiff was excessively sprayed by Crisanto, Reynaga, Wanagitis, Pelayo, Negrete, Hernandez, and Defendant Navarez. Id. ¶ 43. Plaintiff was then ordered to crawl back of his hands and feet. Id. ¶ 45. When Plaintiff stated that he was unable to do so because he could not see because of the pepper-spray, he was sprayed again by Pear, Reynaga, Wanagitis, Pelayo, Negrete, Hernandez, and Defendant Navarez, upon orders by Defendant Popper. Id. ¶ 46. Defendant Popper instructed that Plaintiff be left on the hot asphalt to burn. Id. ¶ 47. Alvarez then ordered Pear and Morales to drag Plaintiff to the skirmish line. Id. ¶ 48.
Plaintiff contends that he was punched, kicked, elbowed and kneed by Pear, Morales and Reese. Id. ¶ 49. Plaintiff states that he was then taken to be decontaminated from the effects of the pepper-spray Id. ¶ 51. Plaintiff alleges that Parks, Defendant Lemos, and Defendant Sweeny failed to ensure that Plaintiff was properly decontaminated. Id. ¶53. Plaintiff states that Parks Defendant Lemos, and Defendant Sweeny did not provide any medical treatment or pain relievers despite Plaintiff's visible burns, cuts and bruises. Id. ¶¶ 55-56.
III. Exhaustion Of Administrative Remedies
Pursuant to the Prison Litigation Reform Act of 1995, "[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 are required to exhaust the 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) (per curiam). 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 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).
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. Jones, 549 U.S. at 216; 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 curiam)). 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. Id. 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 California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). The process is initiated by submitting a CDC Form 602. Id. § 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. § 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. §§ 3084.5, 3084.6(c). In order to satisfy § 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 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always require pursuit of an appeal through the Director's Level of Review. What is required to satisfy exhaustion is a fact specific inquiry, and may be dependent upon ...