ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with an action filed pursuant to 42 U.S.C. § 1983. On June 1, 2010, defendant Compton moved to dismiss this action, arguing that plaintiff had failed to exhaust his available administrative remedies prior to filing this suit as required. Plaintiff has not filed an opposition to the motion.*fn1
Plaintiff is proceeding on his original complaint against defendants Snowden, Seaton, Larios, Vance, and Compton.*fn2 Therein, he alleges that on March 17, 2007, three of his fellow inmates attacked him in an enclosed unit about half of the size of a basketball court. The inmates allegedly attacked plaintiff twice over the course of approximately twenty minutes. Plaintiff alleges that he attempted to alert staff and enlist the assistance of other inmates during the attack to no avail. As a result of the attack, plaintiff alleges that he suffered a jaw fracture, a compound tibia fracture, a nasal fracture, an orbital/eye socket fracture, and a loss of two teeth. He also alleges that he suffers from post-traumatic stress disorder. Plaintiff claims that the named defendants failed to protect him in violation of the Eighth Amendment and requests monetary damages.*fn3 (Compl. at 3-11.)
DEFENDANT'S MOTION TO DISMISS
Counsel for defendant Compton argues that plaintiff failed to exhaust his available administrative remedies prior to filing this suit as required. Specifically, defense counsel argues that plaintiff did not file any inmate appeals concerning his allegations that defendant Compton failed to investigate prior incidents of violence by plaintiff's assailants. (Def.'s Mot. to Dismiss at 3-4.)
I. Legal Standards Applicable to a Motion to Dismiss Pursuant to Non-Enumerated Rule 12(b) By the Prison Litigation Reform Act of 1995 ("PLRA"), Congress amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The United States Supreme Court has ruled that exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. Id. at 741 n.6. Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 90-93 (2006).
In California, prisoners may appeal "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Most appeals progress through three levels of review. See Cal. Code Regs. tit. 15, § 3084.7. The third level of review constitutes the decision of the Secretary of the California Department of Corrections and Rehabilitation and exhausts a prisoner's administrative remedies. Cal. Code Regs. tit. 15, § 3084.7(d)(3). A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available before filing suit. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).
The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative defense that a defendant may raise in a non-enumerated Rule 12(b) motion. See Jones v. Bock, 549 U.S.199, 216 (2007) ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints."); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003). The defendants bear the burden of raising and proving the absence of exhaustion. Wyatt , 315 F.3d at 1119. "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. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust--a procedure closely analogous to summary judgment--then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record."*fn4 Id. at 1120 n.14. When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120. See also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). On the other hand, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
The court finds that plaintiff properly exhausted his Eighth Amendment failure to protect claim against defendant Compton prior to filing this suit as required. Contrary to defense counsel's argument, plaintiff was not required to allege every fact necessary to state or prove a legal claim against defendant Compton in his inmate appeal. As the Ninth Circuit Court of Appeals has explained:
A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation.
Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). See also Jones, 549 U.S. at 219 ("exhaustion is not per se inadequate simply because an individual ...