The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME TO FILE OPPOSITION ORDER DENYING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AS UNTIMELY, MOTION TO AMEND SCHEDULING ORDER, AND PLAINTIFF'S MOTION FOR SANCTIONS
Plaintiff Raymond Wright ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the second amended complaint, filed November 21, 2006, against Defendant Rumbles for excessive force in violation of the Eighth Amendment. On September 14, 2010, a discovery and scheduling order issued setting the pretrial scheduling deadlines. (ECF No. 63.) In the discovery and scheduling order Defendant was advised that unenumerated Rule 12(b) motions for failure to exhaust must be filed by November 14, 2010. The dispositive motion deadline was set for July 25, 2011.
On July 25, 2011, Defendant filed a motion to dismiss on the grounds that the complaint fails to state a claim upon which relief can be granted and lack of subject manner jurisdiction. (ECF No. 81.) Plaintiff filed an opposition on August 18, 2011, and Defendant filed a reply on August 22, 2011. (ECF Nos. 87, 88.)
II. Motion for an Extension of Time
Included with Plaintiff's opposition is a motion for an extension of time to file his opposition. Plaintiff did not receive the motion to dismiss until August 5, 2011, and requests the Court deem his opposition timely filed. The Court shall grant Plaintiff's motion and his opposition is deemed timely.
Defendant argues that Plaintiff has failed to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"). Since Plaintiff did not exhaust administrative remedies this action should be dismissed pursuant to 42 U.S.C. § 1997e. Additionally, Defendant requests an opportunity to file a motion for summary judgment should this motion be denied.
Plaintiff opposes the motion on the ground that the motion is untimely and he did exhaust his available administrative remedies. Plaintiff states that he submitted a timely inmate appeal which was destroyed. Plaintiff requests that the motion be denied, sanctions be imposed for Defendant's improper conduct in bringing the untimely motion, and that he be allowed to file a motion for summary judgment.
Defendant replies that under the PLRA he is entitled to bring the motion for failure to exhaust before being subject to suit. Since Plaintiff's appeal was not submitted to the second level for review, Plaintiff has failed to exhaust his administrative remedies and the motion to dismiss should be granted.
While Defendant states that he brings this motion for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted, he only argues dismissal on the ground that Plaintiff failed to exhaust his administrative remedies. Pursuant to the 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).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense which defendants have the burden of raising and proving the absence of exhaustion. Lira v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)).
In the discovery and scheduling order, Defendant was informed that a motion for failure to exhaust must be brought by November 14, 2010, and extensions of time would only be granted upon a showing of good cause. Defendant did not file a motion for an extension of ...