FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently before the court are two motions to dismiss: one filed by defendants Betti, Brautingham, Callison, Hunter, and Cunningham (Docket No. 98) and one filed by defendant Felker (Docket No. 109). For the following reasons, the court recommends that the motions be granted.
This action proceeds on the amended complaint filed March 29, 2010. Dckt. No. 82. Therein, plaintiff claims that defendants Betti, Hunter, Brautingham, Cunningham, Callison, Lebeck and Felker violated his rights under the Eighth and Fourteenth Amendments to the U.S. Constitution. Plaintiff's claims concern three incidents. First, plaintiff claims that defendants Betti, Hunter, Brautingham, and Cunningham assaulted him on September 13, 2007. Dckt. No. 82 at 2-3, 5-6. Second, plaintiff claims that, on October 19, 2007, defendant Callison prevented him from receiving necessary medication. Id. at 3, 5. Third, plaintiff alleges that defendant Lebeck assaulted him on November 6, 2007.*fn1 Id. at 4, 5. In addition, plaintiff claims that defendant Felker "was continually informed about these assaults and the inhumane treatment of plaintiff" but failed to take action. Id. at 4, 5.
II. Motions to Dismiss filed by Defendants Betti, Brautingham, Cunningham, Hunter, Callison, and Felker
Defendants Betti, Brautingham, Cunningham, Hunter, and Callison argue that plaintiff's claims against them must be dismissed without prejudice because he failed to exhaust them prior to the filing of this suit. Dckt. No. 98. Defendant Felker argues the same. Dckt. No. 109.
A. The Exhaustion Requirement
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). This requirement is mandatory and unequivocal. Booth v. Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) ("Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to suit." (citation omitted)). A prisoner seeking leave to proceed in forma pauperis in an action challenging the conditions of his confinement brings an action for purposes of 42 U.S.C. § 1997e when he submits his complaint to the court. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Therefore, a prisoner must exhaust available administrative remedies before filing any papers in federal court and is not entitled to a stay of judicial proceedings in order to exhaust. Id. at 1051; McKinney, 311 F.3d 1198.
1. Standard of Review Applicable to Motions to Dismiss for Failure to Exhaust
The failure to exhaust non-judicial administrative remedies as required by § 1997e(a) is not jurisdictional. Wyatt v. Terhune, 315 F.3d 1108, 1117 n.9 (9th Cir. 2003). Nor does § 1997e(a) require a plaintiff to plead exhaustion. Id. at 1119. Rather, "§ 1997e(a) creates a defense -- defendants have the burden of raising and proving the absence of exhaustion." Id.; see also Jones v. Bock, 549 U.S. 199, 216 (2007). If the affirmative defense of exhaustion can be decided on the pleadings alone, a motion under Rule 12(b)(6) is appropriate. Jones, 549 U.S.at 215.
But, where resolution of the exhaustion issue require the presentation of evidence outside the pleadings, the issue must be addressed under standards that apply the procedural safeguards of Rule 56, so that disputed issues of material fact and the credibility of conflicting witnesses are resolved through live testimony and not on paper. Fed. R. Civ. P. 12(d) (where a party presents affidavits or other matters outside the pleadings in support of its motion, the court must treat the motion "as one for summary judgment under Rule 56"), 56(b); Panero v. City of North Las Vegas, 432 F.3d 949, 952 (9th Cir. 2005).*fn2 The Court in Jones made clear that, "beyond the departures specified by the PLRA itself," nothing in the PLRA suggests that usual procedural practices should not be followed and noted that departures from the usual procedural requirements are to be expressly made by Congress. Jones, 549 U.S. at 212, 214-16. Thus, where ruling on the motion requires consideration of matter beyond the pleadings and to a factual record, this court applies "a procedure closely analogous to summary judgment." Chatman v. Felker, 2010 WL 3431806 (E.D. Cal. Aug 31, 2010) (No. CIV S-06-2912 LKK EFB)(citing Wyatt, 315 F.3d at 1119, n.14).
2. Summary Judgment Standards
Summary judgment is appropriate when a party demonstrates that there exists "no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52. "When reasonable minds could differ on the material facts at issue, summary judgment is not appropriate." Nw. Motorcycle Ass'n, 18 F.3d at 1472.
In resolving a summary judgment motion, the court examines the pleadings, the discovery and disclosure materials on file, and any affidavits filed by the parties. Fed. R. Civ. P. 56(c)(2). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in his or her favor. Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587. Nevertheless, it is the opposing party's obligation to produce a factual predicate from which a favorable inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
On April 14, 2009, the court informed plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 955-60 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999) (holding that either the district court or the moving party must inform a pro se prisoner of the ...