FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANT JOSEPH'S MOTION TO DISMISS BE DENIED (ECF No. 18)
OBJECTIONS DUE WITHIN THIRTY DAYS
FINDINGS AND RECOMMENDATION
Plaintiff Mark Agnes ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pending before this Court is a Motion to Dismiss filed by Defendant Joseph. (ECF No. 18.) Plaintiff filed an Opposition on August 23, 2011. (ECF No. 22.) No reply was filed.
This action proceeds on Plaintiff's Complaint filed May 10, 2010. (ECF No. 1.) On April 28, 2011, this Court screened Plaintiff's Complaint finding that it stated a cognizable claim for relief against Defendants Joseph and Dixon for deliberate indifference to his serious medical need in violation of the Eighth Amendment.*fn1
In the instant Motion, Defendant argues that Plaintiff failed to exhaust his administrative remedies before filing this action. Defendant states that Plaintiff did file several informal appeals concerning a delay in medical treatment, however, he failed to pursue any of the appeals to the third level of review. (ECF No. 18-1, p. 3.) Defendant states that Plaintiff filed informal appeals on both April 2, 2010 and April 5, 2010. (Id.) These two appeals were granted, or partially, granted because Plaintiff was scheduled to see the doctor. (Id.) Plaintiff also filed three additional informal appeals on April 5, 2010 and April 9, 2010. (Id.) These appeals were screened out as duplicative. (Id.) As such, none of Plaintiff's appeals were pursued to the third level of review. Thus, Defendant argues, Plaintiff failed to exhaust his administrative remedies before filing this action.
Defendant further argues that Plaintiff cannot rely on Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005). The Brown Court held "that a prisoner need not press on to exhaust further levels of review once he has . . . received all 'available' remedies at an intermediate level of review . . . ." Id. at 935. The plaintiff in Brown appealed his grievance to the second level of review, where he then received partial relief. He also received notification indicating that further appeal was not necessary. The Brown Court stated that prison officials had a full opportunity to consider and investigate the grievance before the action was filed and that the plaintiff had no obligation to pursue the third level of appeal before filing suit. Id. at 940.
Here, Defendant argues that Brown does not apply because prison officials did not have any opportunity to consider and investigate Plaintiff's grievance before suit was filed. Plaintiff only filed informal appeals, which were resolved by a staff member at that level. He never filed a formal first level review which means that prison officials were never made aware of Plaintiff's grievance and, thus, never had the opportunity to address or investigate it.
In his Opposition, Plaintiff states that his appeals were granted at the informal level and that he was satisfied with the remedy. Thus, he argues, that because his appeals were granted at the informal level and he was satisfied with the remedy, he was not required to appeal further as there was no other remedy he was seeking.
"The Prison Litigation Reform Act [("PLRA")] requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997e(a)); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (quoting Porter v. Nussle, 534 U.S. 516, 525 n.4 (2002)) (The PLRA "creates 'a general rule of exhaustion' for prisoner civil rights cases."). "'[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.'" Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002) (quoting Porter, 534 U.S. at 532); accord Roles v. Maddox, 439 F.3d 1016, 1018 (9th Cir.), cert. denied, 549 U.S. 905 (2006). The PLRA's "exhaustion requirement is mandatory." McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam); accord Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court."); see also Panaro v. City of North Las Vegas, 432 F.3d 949, 954 (9th Cir. 2005) (The PLRA "represents a Congressional judgment that the federal courts may not consider a prisoner's civil rights claim when a remedy was not sought first in an available administrative grievance procedure."). Even if the prisoner seeks monetary or other relief that is unavailable through the grievance system in question, the prisoner must still first exhaust all available administrative remedies. See Booth v. Churner, 532 U.S. 731, 741 (2001) ("[W]e think that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.").
While the PLRA requires "proper" exhaustion of available administrative remedies, Woodford v. Ngo, 548 U.S. 81, 93 (2006), it does not define the boundaries of proper exhaustion. See Jones, 549 U.S. at 218. Rather, "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford, 548 U.S. at 90. "The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones, 549 U.S. at 218; see, e.g., Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009, as amended June 5, 2009) (per curiam) ("The California prison system's requirements define the boundaries of proper exhaustion.") (internal quotation marks and citation omitted). Absent a prison grievance procedure mandating the naming of each individual involved, a prisoner need not identify all of the defendants later named in a lawsuit during the administrative grievance process. Jones, 549 U.S. at 218.
The PLRA's exhaustion requirement is not jurisdictional; rather, it creates an affirmative defense that a defendant may raise in an unenumerated Rule 12(b) motion. See Jones, 549 U.S. at 213-14; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 540 U.S. 810 (2003). The defendant bears the burden of raising and proving the absence of exhaustion. Wyatt, 315 F.3d at 1119. Specifically, the defendant must show that some administrative relief remains available to the plaintiff "whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process." Brown, 422 F.3d at 936-37. In deciding a motion to dismiss for failure to exhaust, a court may "look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119-20. When a prisoner has not exhausted administrative remedies on a claim, "the proper remedy is ...