The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANTS' MOTION
TO DISMISS FOR FAILURE TO STATE A CLAIM BE DENIED AND
DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO
EXHAUST BE GRANTED
THIRTY-DAY OBJECTION PERIOD
Findings and Recommendations Addressing Motion to Dismiss
Plaintiff Edward Demerson, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 6, 2006. This action is proceeding on Plaintiff's second amended complaint, filed on June 2, 2009, against Defendants Curtiss, Renya, and Morgan for excessive force and against Defendants Curtiss, Renya, and Reynoso for failing to protect Plaintiff, in violation of the Eighth Amendment.
On March 14, 2011, Defendants Curtiss, Renya, Reynoso, and Morgan filed a motion to dismiss for failure to state a claim, Fed. R. Civ. P. 12(b)(6), and for failure to exhaust the available administrative remedies in compliance with 42 U.S.C. § 1997e(a), Fed. R. Civ. P. 12(b). After obtaining extensions of time, Plaintiff filed an opposition on July 25, 2011, and Defendants filed a reply on August 8, 2011.*fn1 Local Rule 230(l).
II. Failure to State a Claim
Defendants argue that they are entitled to dismissal of this action for failure to state a claim because Plaintiff failed to allege compliance with California's Tort Claims Act (CTCA). Fed. R. Civ. P. 12(b)(6).
The CTCA requires that a tort claim against a public entity or its employees be presented to the California Victim Compensation and Government Claims Board no more than six months after the cause of action accrues.*fn2 Cal. Gov't Code §§ 905.2, 910, 911.2, 945.4, 950-950.2 (West 2011). Presentation of a written claim and action on or rejection of the claim are conditions precedent to suit, and Defendants correctly argue that to state a tort claim against a public employee, Plaintiff must allege compliance with the CTCA. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 208-09 (Cal. 2007); State v. Superior Court of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239 (Cal. 2004); Mabe v. San Bernardino Cnty. Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001); Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988). However, pursuant to the operative screening order, this action is proceeding exclusively on federal constitutional claims. Given the absence of any pending state law tort claims, Defendants' motion to dismiss for failure to allege compliance with the CTCA is misdirected and it must be denied.*fn3
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, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 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, 121 S.Ct. 1819, 1825 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983, 992 (2002).
The failure to exhaust in compliance with section 1997e(a) 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 is subject to an unenumerated Rule 12(b) motion, and in resolving the motion, the Court may look beyond the pleadings and decide disputed issues of fact. Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010); Wyatt, 315 F.3d at 1119-20. If the Court concludes that Plaintiff failed to exhaust, the proper remedy is dismissal without prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
B. Administrative Remedy Process*fn4
The California Department of Corrections and Rehabilitation (CDCR) has an administrative grievance system for prisoners to appeal any departmental decision, action, condition, or policy having an adverse effect on prisoners' welfare. Cal. Code Regs. tit. 15, § 3084.1. In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to ...