The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS'
MOTION TO DISMISS FOR FAILURE TO EXHAUST BE DENIED
OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Augusta Connor ("Plaintiff") is a former state prisoner proceeding with counsel in this civil action. This action now proceeds on Plaintiff's original Complaint filed on October 20, 2010, against defendants State of California, Valley State Prison for Women ("VSPW"), T. Hornbeck , Brett Morgan, Sharon Aungst, and the California Department of Corrections ("Defendants"), for violation of Plaintiff's rights under the Americans with Disabilities Act, the Rehabilitation Act, and California's Disabled Persons Act. (Doc. 1.)
On February 14, 2011, Defendants filed a motion to dismiss this action under Rule 12(b) for failure to exhaust administrative remedies. (Doc. 24.) On February 28, 2011, Plaintiff filed an opposition to the motion. (Doc. 25.) On March 16, 2011, Defendants filed a reply to Plaintiff's opposition. (Doc. 28.) Defendants' motion is now before the Court.
II. PLAINTIFF'S CLAIMS AND ALLEGATIONS
Plaintiff was incarcerated at VSPW in Chowchilla, California, between June 2009 and January 2010. Plaintiff's Complaint arises from a fall she took in the shower at VSPW on or about September 13, 2009, causing injury to her knees and back. Plaintiff, who is physically disabled, claims that Defendants failed to provide her with appropriate access to VSPW prison facilities due to architectural barriers including inaccessible toilets lacking required grab bars, and inaccessible shower facilities lacking both grab bars and shower seats. Plaintiff requests monetary damages, injunctive relief, attorneys' fees, expenses of litigation, and costs of suit.
III. UNENUMERATED RULE 12(b) MOTION TO DISMISS FOR FAILURE TO EXHAUST
Defendants argue that this action should be dismissed because Plaintiff failed to exhaust her administrative remedies before filing suit.
A. Statutory Exhaustion Requirement
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[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 must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001). "Proper exhaustion[, which] demands compliance with an agency's deadlines and other critical procedural rules . . . ." is required, Woodford v. Ngo, 548 U.S. 81, 90 (2006), and may not be satisfied "by filing an untimely or otherwise procedurally defective . . . appeal." Id. at 83-84.
The PLRA requires a prisoner to exhaust "such administrative remedies as are available" before suing over prison conditions. 42 U.S.C. § 1997e(a). The Booth court held that the PLRA requires administrative exhaustion even where the grievance process does not permit award of money damages and prisoner seeks only money damages, as long as the grievance tribunal has authority to take some responsive action. Booth, 532 U.S. at 732. "The meaning of the phrase 'administrative remedies ... available' is the crux of the case." Id. at 731. In discussing the meaning of the term "remedy," the court noted that "depending on where one looks, 'remedy' can mean either specific relief obtainable at the end of a process of seeking redress, or the process itself, the procedural avenue leading to some relief." Id. at 738. (emphasis added.) Thus, the court determined that the language of the statute, which requires that the "available" "remed[y]" must be "exhausted" before a complaint under § 1983 may be entertained, refers to "exhaustion" of the process available. Id. at 738-739. (emphasis added.) It follows, then, that if an inmate exhausts the process that is made available to him, he has satisfied the requirement of the statute.
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. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 215-16 (2007); Wyatt v. Terhune, 315 F.3d, 1108, 1119 (9th Cir. 2003). "[T]here can be no 'absence of exhaustion' unless some relief remains 'available.'" Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). "[A] defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of relief already granted as a result of that process." Id. at 936-37. Therefore, if some remedy is available, Plaintiff has not exhausted her remedies.
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 curium)). 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. Wyatt, 315 F.3d at 1119-20. If the Court ...