The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION,
RECOMMENDING THAT DEFENDANTS'
MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED
OBJECTIONS, IF ANY, DUE IN THIRTY
Eugene Hamilton ("Plaintiff") is a state prisoner proceeding pro se
and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff
commenced this action on December 29, 2008. (Doc. 1.) This action now
proceeds on the original Complaint, against defendants
Guerrero*fn1 and Arenivas ("Defendants"), for
excessive force in violation of the Eighth Amendment.*fn2
On September 8, 2010, Defendants filed a motion to dismiss this action for failure to exhaust administrative remedies and for failure to state a claim. (Doc. 21.) Plaintiff filed an opposition on September 29, 2010, and Defendants filed a reply on October 1, 2010. (Docs. 25, 26.) Defendants' motion is now before the Court.
II. PLAINTIFF'S CLAIMS AND ALLEGATIONS*fn3
On January 2, 2008, when transporting Plaintiff from Mercy Hospital to Corcoran State Prison ("CSP"), Defendants Correctional Officers ("C/Os") Guerrero and Arenivas maltreated Plaintiff, violently ripped off his clothing, violently put paper boxer shorts on him, violently grabbed him by the waist to throw him into a wheelchair, and dropped Plaintiff onto his knees. Defendant Guerrero also placed handcuffs and a waist chain on Plaintiff, applying extra pressure to harm Plaintiff. Plaintiff brings claims against Defendants Guerrero and Arenivas for use of excessive force, in violation of the Eighth Amendment.
III. UNENUMERATED RULE 12(b) MOTION TO DISMISS FOR FAILURE TO EXHAUST
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.
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.). "[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 his 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 concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
B. CDCR's Administrative Grievance System
The Court takes judicial notice of the fact that the California Department of Corrections and Rehabilitation ("CDCR") has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2007). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6©. 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." Id. at § 3084.5. In order to satisfy § ...