The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' February 3, 2011, motion to dismiss for failure to exhaust administrative remedies as to certain claims and defendants, to which plaintiff filed an opposition, to which defendants filed a reply.*fn1
Defendants move for dismissal, under non-enumerated Fed. R. Civ. P. 12(b), for plaintiff's alleged failure to exhaust administrative remedies as to defendants Koelling, Seuber and Palwick.*fn2 Motion to Dismiss (MTD).
Legal Standard under Non-Enumerated Fed.R.Civ.P. 12(b)
In a motion to dismiss for failure to exhaust administrative remedies under non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure, defendants "have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The parties may go outside the pleadings, submitting affidavits or declarations under penalty of perjury, but plaintiff must be provided with notice of his opportunity to develop a record. Wyatt v. Terhune, 315 F.3d at 1120 n.14. The court provided plaintiff with such fair notice by Order, filed on December 7, 2010 (docket # 21).
Should defendants submit declarations and/or other documentation demonstrating an absence of exhaustion, making a prima facie showing, plaintiff must refute that showing. Plaintiff may rely upon statements made under the penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court's attention those parts of the complaint upon which plaintiff relies. If the court determines that plaintiff has failed to exhaust, dismissal without prejudice is the appropriate remedy for non-exhaustion of administrative remedies. Wyatt v. Terhune, 315 F.3d at 1120.
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) provides that, "[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." Inmates seeking injunctive relief must exhaust administrative remedies. Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999). In Booth v. Churner, 532 U.S. 731,741, 121 S. Ct. 1819, 1825 (2001), the Supreme Court held that inmates must exhaust administrative remedies, regardless of the relief offered through administrative procedures. Therefore, inmates seeking money damages must also completely exhaust their administrative remedies. Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819 (inmates seeking money damages are required to exhaust administrative remedies even where the grievance process does not permit awards of money damages). The United States Supreme Court has held that exhaustion of administrative remedies under the PLRA requires that the prisoner complete the administrative review process in accordance with the applicable procedural rules. Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378 (2006). Thus, in the context of the applicable PLRA § 1997e(a) exhaustion requirement, any question as to whether a procedural default may be found should a prisoner plaintiff fail to comply with the procedural rules of a prison's grievance system has been resolved: the PLRA exhaustion requirement can only be satisfied by "proper exhaustion of administrative remedies....," which means that a prisoner cannot satisfy the requirement "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Woodford v. Ngo, supra, at 84, 126 S. Ct. at 2382. Moreover, 42 U.S.C. § 1997e(a) provides that no action shall be brought with respect to prison conditions until such administrative remedies as are available are exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002), but see Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010) (PLRA exhaustion requirement satisfied with respect to new claims within an amended or supplemental complaint so long as administrative remedies are exhausted prior to the filing of the amended or supplemental complaint).
Administrative Exhaustion Procedure
In order for California prisoners to exhaust administrative remedies, they must proceed through several levels of appeal: 1) informal resolution, 2) formal written appeal on a CDC 602 inmate appeal form, 3) second level appeal to the institution head or designee, and 4) third level appeal to the Director of the California Department of Corrections. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. xv, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement. Id. at 1237-38.
On April 29, 2009, defendant Correctional Officer (C/O) Beyer ordered plaintiff to pack his property for a move to a different housing unit despite plaintiff's explaining to him that he had physical limitations and qualifying disabilities under the Americans With Disabilities Act (ADA) and that he had been ordered by the chief medical officer not to lift more than two pounds. First Amended Complaint (FAC), p. 3. Plaintiff tried to move several boxes to show defendant Beyer the chrono showing he had had recent surgery on the ulnar nerve in his left hand, which had caused atrophy of the muscle. Id. In doing so, he re-injured his ulnar nerve causing extreme pain and more muscle atrophy. Id. at 4. Plaintiff asked to speak to a lieutenant or sergeant; instead, defendant ...