The opinion of the court was delivered by: Roger L. Hunt United States District Judge
(Motion for Summary Judgment--#63)
Before the Court is Defendants Beasley, Callison, Chapman, Craddock, Kemp, McGrath, McGuire, Peddicord, Rausch, Smith, Wagner, and Wright's Motion for Summary Judgment (#63, filed Mar. 11, 2011). The Court has also considered Plaintiff Edward Motley's Opposition (#71, filed May 18, 2011), and Defendants' Reply (#73, filed June 3, 2011).
Plaintiff Edward Motley is a state prisoner at the Salinas Valley State Prison in Soledad, California. Defendants are prison officials who were employed with the California Department of Corrections and Rehabilitation ("CDCR") at the time of the alleged events. Motley alleges that Defendants violated several of his constitutional rights in various ways, including preventing him from attending a disciplinary hearing, maliciously assaulting him, refusing to give him medical care, etc. Motley filed suit against Defendants under 42 U.S.C. § 1983 asserting several constitutional claims. Pursuant to the Prisoner Litigation Reform Act, 28 U.S.C. § 1915A(a), the Court screened Motley's complaint and allowed the following claims to proceed: (1) Fourteenth Amendment due process, (2) First Amendment retaliation, (3) First Amendment access to the courts, (4) Eighth Amendment excessive force, and (5) Eighth Amendment deliberate indifference. Defendants have now filed a motion to dismiss/motion for summary judgment, asking the Court to dismiss some claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure and others under Rule 56. For the reason discussed below, the Court grants Defendants' motion.
I. Defendants' Motion to Dismiss
A court may dismiss a plaintiff's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted." However, where a motion brought under Rule 12(b)(6) is filed after a responsive pleading is filed (i.e., an answer to a complaint) the motion is untimely. Fed. R. Civ. P. 12(b); see Bechtel v. Liberty Nat'l Bank, 534 F.2d 1335, 1341 (9th Cir. 1976). In addition, an untimely filed Rule 12(b)(6) motion will be treated as a motion for judgment on the pleadings under Rule 12(c). Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 (2004). However, the net effect is inconsequential because a motion for judgment on the pleadings is governed by the same standard as a motion to dismiss for failure to state a claim. Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). Thus, a judgment on the pleadings is appropriate when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Therefore, to survive a Rule 12(c) motion, a complaint must contain sufficient factual matter to state a claim that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Finally, "[i]n deciding a motion to dismiss for failure to exhaust non-judicial remedies under the [Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a)], a district court 'may look beyond the pleadings and decide disputed issues of fact.'" Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010) (citing Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003)).
In this case, Defendants filed their Rule 12(b)(6) motion after they filed their answer to Motley's complaint. Therefore, the Court finds the motion untimely and will treat it as a motion for judgment on the pleadings under Rule 12(c). Elvin, 375 F.3d at 955. In addition, because Defendants' motion is partly based on Plaintiff's failure to exhaust under the PLRA, the Court will look beyond the pleadings to analyze this motion. Morton, 599 F.3d at 945.
Defendants argue that the Court should dismiss Motley's First and Eighth Amendment claims against Defendants Callison, Craddock, Peddicord, Rausch, Smith, and Wagner because Motley did not exhaust his administrative remedies for the claims against these Defendants. The PLRA requires that a prisoner exhaust all available administrative remedies before filing a civil action. 42 U.S.C. § 1997e(a). The PLRA's exhaustion requirement applies to "all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520 (2002). In order for a prisoner to exhaust administrative remedies he or she must comply with the regulations that govern the prison's administrative appeals system. Jones v. Bock, 549 U.S. 199, 218 (2007).
Under California law, an inmate or parolee may "appeal any policy, decision, action, condition, or omission by the [CDCR] or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare."
15 CCR § 3084.1(a). To initiate an appeal, the inmate must file a CDCR Form 602 with an appeals coordinator within 30 calendar days of the event that lead to the filing of the appeal. 15 CCR §§ 3084.2(a), (c); 3084.8(b)(1). The appeals coordinator will then conduct an initial screening of the appeal, which can result in the acceptance, rejection, or cancellation of the appeal.
15 CCR § 3084.5(b). If the appeals coordinator rejects or cancels the appeal, the inmate or parolee must be notified of the reasons for the rejection or cancellation. 15 CCR § 3084.5(b)(3). However, "a cancellation or rejection decision does not exhaust administrative remedies." 15 CCR § 3084.1(b). In general, to exhaust administrative remedies the inmate or parolee must complete three levels of appeal. 15 CCR 3084.1(b). An appeal may bypass the first two levels of appeal under certain circumstances, but all appeals are subject to third level review. 15 CCR §§ 3084.7(a); 3084.1(b). Once the third level of review is complete, the inmate has exhausted his or her administrative remedies. 15 CCR 3084.1(b).
1. Motley's Excessive Force Claim Against McGuire
The Court finds that Motley has failed to exhaust his administrative remedies for his excessive force claim against McGuire. Motley alleges that McGuire was escorting Motley to his cell when McGuire began to physically assault him by pushing him up against the wall and slamming his hands in the cell door. Although Motley properly initiated his appeal against McGuire by filing a Form 602 with the appeals coordinator, he failed to exhaust the appeal because he only completed the first and second levels of review. Even though Motley's appeal was partially granted on the second level of review, he was still required to appeal to the third level of review in order to exhaust his administrative remedies. 15 CCR §§ ...