The opinion of the court was delivered by: Dennis L. United States Magistrate Judge
ORDER GRANTING DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S SURREPLY (DOCS. 27, 29) ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR PLAINTIFF'S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (DOC. 24)
Plaintiff Eric Wilton Burton ("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. On May 1, 2009, Plaintiff filed his first amended complaint ("FAC") against Defendant Ken Clark for violation of the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000. Doc. 7, FAC.; Doc. 11, Order Dismissing Certain Claims and Defs.
Pending before the Court is Defendant Ken Clark's motion to dismiss for Plaintiff's failure to exhaust administrative remedies, filed April 8, 2010, Doc. 24, and Defendant's motion to strike Plaintiff's surreply. Plaintiff filed his opposition to Defendant's motion to dismiss on April 19, 2010, *fn1 Doc. 25, and his objections to Defendant's motion to strike on May 24, 2010, Doc. 30. Defendant Clark filed his reply to Plaintiff's opposition on April 26, 2010. Doc. 26. The matter is submitted pursuant to Local Rule 230(l).
II. Motion To Strike Surreply
On May 7, 2010, Plaintiff filed a motion entitled "cross-motion for summary judgment." Doc. 27. The Court construes this motion as a surreply as it actually addresses Defendant's reply to Plaintiff's opposition. On May 13, 2010, Defendant filed a motion to strike the surreply. Doc.29. Plaintiff filed objections to Defendant's motion on May 24, 2010. Doc. 30.
The Local Rules of this Court and the Federal Rules of Civil Procedure do not generally permit the filing of a surreply. See L.R. 230(l). The Court did not request a surreply from Plaintiff. Accordingly, Defendant's motion to strike, filed May 13, 2010, is granted. Plaintiff's motion for cross summary judgment, construed as a surreply, is stricken.
III. Summary Of First Amended Complaint
Plaintiff alleges that he is an African American Jewish convert. Plaintiff alleges that on or around October 10, 2008, he was taken off the previously approved kosher diet meal plan and placed on the religious vegetarian meal plan. Plaintiff alleges that Defendant Ken Clark created a discriminatory policy against non-traditional African American inmates like Plaintiff, thus impeding Plaintiff's religious practice.
IV. Failure To Exhaust 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). 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 ...