The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT [Doc. No. 11]
On September 10, 2010, Plaintiff LeWayne Lee Miller ("Plaintiff"), a
state prisoner proceeding pro se, commenced this action seeking relief
under 42 U.S.C. § 1983 for purported violations of his rights under
the First and Eighth Amendments to the United States Constitution.
Defendants Rutledge, Partida, Rush, and Lopez move to dismiss
Plaintiff's complaint pursuant to Federal Rule of Civil Procedure
12(b) for failure to exhaust administrative remedies prior to filing
suit. Plaintiff has not filed an opposition to the motion.*fn1
For the following reasons, the Court GRANTS Defendants'
Plaintiff is a prisoner currently incarcerated at Kern Valley State Prison, proceeding pro se and in forma pauperis on his complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff was previously housed at Calipatria State Prison in Calipatria, California. Defendants are a group of correctional officers at Calipatria State Prison. The following description of events is taken from the pleadings and is not to be construed as findings of fact by the Court.*fn2
On or about December 7, 2009, Defendants Rutledge, Rush, and Partida approached Plaintiff's cell and ordered Plaintiff and his cell mate to exit the cell and submit to a cell search and an unclothed body search for a suspected contraband cell phone. Defendants escorted Plaintiff and his cell mate to separate showers, where Defendant Rutledge ordered Plaintiff to strip himself of his clothing. Defendants Rutledge and Rush observed Plaintiff attempting to conceal a cell phone in his left hand. Defendant Rutledge asked Plaintiff to identify the object in his left hand. Plaintiff responded by spinning around and throwing the cell phone into the shower wall. The cell phone smashed into pieces. Defendants Rutledge and Rush simultaneously sprayed Plaintiff's face and upper torso with two canisters of pepper spray, causing great pain to Plaintiff's eyes and body. Defendant Rutledge ordered Plaintiff to get down, and Plaintiff complied immediately. However, Defendants Rutledge and Rush continued to spray Plaintiff with pepper spray until their canisters were empty.
Defendants Partida and Lopez observed the pepper spray incident but did not intervene. Plaintiff advised Defendants of his intent to file an administrative grievance based on the incident. Defendants allowed Plaintiff to remain in the shower for over two hours with the water cut off, preventing Plaintiff from being able to decontaminate himself, causing him great pain and suffering.
Based on these events, Plaintiff alleges Defendants Rutledge and Rush violated his Eighth Amendment right to be free from cruel and unusual punishment by using excessive force. Plaintiff alleges Defendants Partida and Lopez violated his Eighth Amendment rights by failing to protect him from the acts of Defendants Rutledge and Rush. Plaintiff further alleges that all of the defendants violated his First Amendment rights by retaliating against him after being advised of his plan to file an administrative grievance.
Defendants move to dismiss Plaintiff's complaint for failure to exhaust his administrative remedies prior to filing this action. According to Defendants, Plaintiff faced disciplinary charges arising out of the events described in his complaint and he was ultimately found guilty of a serious rules violation. Defendants assert that while Plaintiff filed an appeal of the guilty finding, he filed no other administrative grievances related to the December 7, 2009 incident. As such, Defendants argue that Plaintiff did not exhaust his claims and his complaint must be dismissed. Plaintiff does not oppose Defendants' motion.*fn3
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 ...