The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
IGBINOSA'S MOTION TO DISMISS BE GRANTED (DOC. 24)
OBJECTIONS DUE WITHIN TWENTY-ONE
Findings And Recommendation
Plaintiff Robert James Dixon ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). This action is proceeding on Plaintiff's amended complaint against Defendants F. Igbinoza and J. Diep*fn1 for violation of the Eighth Amendment. Pending before the Court is Defendant Igbinoza's motion to dismiss, filed September 20, 2010, for Plaintiff's failure to exhaust administrative remedies. Def.'s Mot. Dismiss, Doc. 24. On May 31, 2011, Plaintiff filed his opposition to Defendant's motion.*fn2 Pl.'s Opp'n, Doc. 35.*fn3 The matter is deemed submitted pursuant to Local Rule 230(l).
II. Summary of Amended Complaint
Plaintiff received a prostate biopsy at an outside clinic on August 1, 2008. Am. Compl. 1. On August 4, 2008, during a D-yard clinic visit with Plaintiff, doctor Paja called the outside clinic and learned that the biopsy results indicated Plaintiff had prostate cancer. First Am. Compl. ("FAC") 1. The treatment for this cancer was not chemo or radiation, but a radical prostatectomy. FAC 1. Plaintiff received a copy of the biopsy results from urologist doctor Sable of the outside clinic, who set a time line of 90 days for the surgery. FAC 2. Plaintiff handed a copy of these results to Defendant Doctor John Diep at PVSP. FAC 2. It was understood that surgery was urgent. FAC 2. Defendant Diep read the results of the biopsy, placed a copy into Plaintiff's file, and faxed a copy to Doctor Pido. FAC 2. Surgery was set for September 10, 2009, with doctors Sable and Hennary, who were to perform the surgery and repair a hernia. FAC 3.
On August 15, 2008, Plaintiff was called to D-yard clinic, where Dr. Pido informed Plaintiff that he was being transferred out of PVSP because it was a valley fever area and chemo treatment weakened the immune system. FAC 3. Plaintiff informed Dr. Pido that he was not going to receive chemo, but surgery. FAC 3. Dr. Pido informed Plaintiff that there was no request for urgent surgery in his file, and that the transfer order had already been sent to Defendant CMO Igbinosa to be signed. FAC 3-4. Registered nurse M. Griffith informed Dr. Pido that a transfer would prolong the date of surgery past the recommended time line. FAC 4. Dr. Pido stated again that the transfer was done. FAC 4. Defendant Igbinosa signed the transfer order on August 15, 2008, with full knowledge of risk of prolonging the time before surgery. FAC 4.*fn4
III. Exhaustion Of Administrative Remedies
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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).
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. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 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 curiam)). 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. Id. at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
The California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). At the time the grievance was filed, the process was initiated by submitting a CDC Form 602. Id. § 3084.2(a). Four levels of appeal were involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. § 3084.5. 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. §§ 3084.5, 3084.6(c). In order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always require pursuit of an appeal through the Director's Level of Review. What is required to satisfy exhaustion is a fact specific inquiry, and may be dependent upon prison officials' response to the appeal. See Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of exceptions to exhaustion requirement from other circuits); Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005) ("[E]ntirely pointless exhaustion" not required).
Defendant contends that Plaintiff did not exhaust administrative remedies regarding this claim. Def,'s Mot. Dismiss 5:17-6:6, Doc. 24. Defendant contends that Plaintiff's inmate grievance No. PVSP-D-09-00245, which Plaintiff cites as his inmate grievance regarding this claim, failed to exhaust administrative remedies. Def.'s Ex. A., Doc. 35. Defendant contends that the grievance failed to "'alert the prison to the nature of the wrong for which redress is ...