The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS R E C O M M E N D I N G G R A N T I N G DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF Nos. 63, 67, 68) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Travis Ray Thompson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the third amended complaint, filed July 13, 2009, against Defendants Alvarez and Redenius for use of excessive force in violation of the Eighth Amendment. (ECF No. 31.) Defendants filed a motion to dismiss on December 17, 2010. (ECF No. 63.) Plaintiff filed an opposition on January 14, 2011. (ECF No. 67.) Defendants filed a reply on January 27, 2011. (ECF No. 70.)
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). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006).
All available remedies must be exhausted, not just those remedies that meet federal standards, Woodford, 548 U.S. at 84, nor must they be "plain, speedy, and effective," Booth v. Churner, 532 U.S. 731, 739 (2001). 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. Id at 741; see Woodford, 548 U.S. at 93.
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084, et seq. "Any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs., tit. 15 § 3084.1(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Cal. Code Regs. tit 15, § 3084.5.
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense which defendants have the burden of raising and proving the absence of exhaustion. Lira v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). 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 v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (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, a court may look beyond the pleadings and decide disputed issues of fact." Sapp v. Kimbrell, 623 F.3d. 813, 821 (9th Cir. 2010) (quoting Wyatt, 315 F.3d at 1119-20). If the court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice, even where there has been exhaustion while the suit is pending. Lira, 427 F.3d at 1171.
On June 13, 2006, Plaintiff withheld his breakfast tray in order to seek the attention of prison supervisors so he could gain access to his legal work. Defendants Alvarez and Redenius allegedly responded by kicking Plaintiff's door. Defendants then accused Plaintiff of kicking the door so they could pepper spray him. Plaintiff alleges that he was pepper sprayed by Defendants Alvarez and Redenious. After being pepper sprayed Defendants failed to decontaminate Plaintiff and left him to suffer the effects of the pepper spray.
Defendants move to dismiss the complaint because Plaintiff failed to exhaust his administrative remedies. A review of the inmate appeals filed by Plaintiff between June 1, 2006 and August 31, 2006, reveals that he did not file a grievance on the incidents alleged in the complaint. (Sampson Declararion in Support of Motion to Dismiss 2:-3, ECF No. 63-2.)
Plaintiff claims that Defendants screened out his inmate appeal claiming that the related administrative rules violation report had not been adjudicated and would not permit his appeal to be processed. Plaintiff then sent the grievance to the Office of the Inspector General and Internal Affairs. (Opposition 3, ECF No. 67.) Plaintiff includes correspondence dated July 28, 2006, from the Deputy Inspector General informing him that he must first demonstrate his attempts to resolve the issues by completing the formal administrative process at the prison; a letter from the Chief Deputy Warden dated September 13, 2006, addressing the letter Plaintiff sent to the Office of Internal Affairs; and an inmate appeal form dated August 13, 2006, regarding an issue unrelated to the claims against Defendants in this action. (Id., pp. 8, 10, 14-16.)
Defendants respond that Plaintiff has submitted no evidence to support his contentions that he submitted an inmate appeal. (Reply 2, ECF No. 68.)
The requirement that prisoners pursue administrative remedies allows prison officials to correct their mistakes and allows for grievances to be resolved more quickly and economically than litigating in court. Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010.) The Ninth Circuit has recognized an exception to the exhaustion requirement where prison officials render administrative remedies effectively unavailable by improperly screening a prisoner complaint. To fall within this exception the inmate must establish that he actually filed a grievance that would have sufficed to exhaust his claims had he pursued it through the ...