The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Defendant's motion to dismiss for failure to exhaust administrative remedies is pending. This case is currently proceeding on plaintiff's claim that defendant used excessive force against plaintiff on January 27, 2010 when defendant allegedly slammed plaintiff down on a concrete floor and then repeatedly punched him.
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Id.
The exhaustion requirement is rooted in the Prison Litigation Reform Act, which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). California Department of Corrections (CDC) regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a prisoner has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All steps must be completed before a civil rights action is filed, unless a plaintiff demonstrates a step is unavailable to him; exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119.
In his complaint, plaintiff asserts he submitted a grievance regarding the events at issue in this case, and the process concluded when the grievance was "cancelled" at the second level for "lack of cooperation." In his motion, defendant admits these facts. Defendant provides a copy of plaintiff's grievance and it does indicate on the grievance that it was "cancelled" at the second level. Mot., Ex B. There is no indication on the grievance form why the grievance was cancelled. Defendants do provide a memorandum authored by Warden Tim Virga in which Warden Virga indicates: 1) Lt. Cannedy conducted review of plaintiff's grievance at the second level; 2) Cannedy "attempted to interview [plaintiff] regarding [his] appeal and although [plaintiff] attended the interview, [plaintiff] refused to answer any of the questions asked . . .;" 3) "Cannedy advised [plaintiff] that [plaintiff was] being uncooperative by not answering the questions and [plaintiff] returned to [his] assigned cell." However, those portions of the memorandum authored by Virga which recount information provided to him by Lt. Cannedy constitute inadmissible hearsay. See Fed. R. Evid. 801. Therefore, there is nothing admissible before the court indicating why plaintiff's grievance was cancelled.*fn1
In his opposition, plaintiff fails to provide any coherent explanation why his grievance was cancelled. He does present some exhibits which suggest his grievance was cancelled inappropriately, but plaintiff's exhibits are not admissible because plaintiff has failed to provide an adequate foundation for any exhibit.*fn2 See Fed. R. Evid 901.
The evidence before the court establishes that administrative remedies were not exhausted with respect to the claims before the court because the grievance process was terminated at the second level. It is defendant's burden to show that administrative remedies have not been exhausted and he has met that burden. After it was shown that administrative remedies were not exhausted, it becomes plaintiff's burden to provide a basis for excusing failure to exhaust. Lamon v. Tilton, CIV-07-0493 AWI DLB PC, 2011 WL 532315, at *2 (E.D. Cal. Feb 14, 2011). Plaintiff has not met his burden. Therefore, the court will recommend that defendant's motion to dismiss be granted.
The court notes that plaintiff filed a sur-reply concerning defendant's motion to dismiss. This is not permitted under the Local Rules of this court. See Local Rule 230(l). Because plaintiff was not granted leave to file a sur-reply, it will be stricken from the record.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's June 9, 2011 "rebuttal towards defendants reply to plaintiff's opposition . . ." is stricken from the record; and
2. The Clerk of the Court assign a district court judge to this case;
IT IS HEREBY RECOMMENDED that:
1. Defendant's May 3, 2011 motion to dismiss be granted; and
2. This case be dismissed for failure to exhaust ...