The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANT WILBER'S MOTION TO DISMISS BE GRANTED AND ACTION BE DISMISSED WITHOUT PREJUDICE
OBJECTIONS DUE WITHIN 21 DAYS
Findings and Recommendation
Plaintiff Barry Louis Lamon ("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. This action is proceeding on Plaintiff's third amended complaint against Defendant Wilber for violation of Plaintiff's rights under the First Amendment, Eighth Amendment, and California Civil Code section 52.1. On September 9, 2010, Defendant Wilber filed a motion to dismiss pursuant to the unenuemerated portion of Federal Rule of Civil Procedure 12(b), for Plaintiff's failure to exhaust administrative remedies. Def.'s Mot. Dismiss, Doc. 119. *fn1 On December 27, 2010, Plaintiff filed his opposition. *fn2 Pl.'s Opp'n, Doc. 136. On December 27, 2010, Defendant filed his reply.
Def.'s Reply, Doc. 135. The matter is submitted pursuant to Local Rule 230(l).
II. Summary Of Third Amended Complaint
Plaintiff is incarcerated at Corcoran State Prison, where the events giving rise to this action occurred. Plaintiff alleges that from approximately September 15, 2006 through March 29, 2007, Defendant Wilber retaliated against Plaintiff by serving him only one-third to one-half portions of meals consisting of pan-scrapings, crumbs, remnants, and scraps of food. *fn3
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 ...