The opinion of the court was delivered by: Hon. Larry Alan Burns United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED.R.CIV.P.12(b) [ECF No. 9]
Charles Grady ("Plaintiff"), a prisoner currently incarcerated at Pleasant Valley State Prison in Coalinga, California, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 13, 2011. Plaintiff alleges that while he was housed at the Richard J. Donovan Correctional Facility ("Donovan") in 2010 and 2011 his constitutional rights were violated.
Defendant Ronquillo has filed a Motion to Dismiss pursuant to FED.R.CIV.P. 12(b) and 12(b)(6). However, Plaintiff has failed to file an Opposition. The Court has determined that Defendant's Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Jan M. Adler is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).
In October and November of 2010, Plaintiff, while housed at Donovan, alleges that Defendant Ronquillo would destroy inmate administrate grievances. (See Compl. at 3.) As a result, Plaintiff was unable to properly resolve his grievances. (Id.) Plaintiff wrote an administrative grievance alleging that Defendant Ronquillo was "disrespectful" and Plaintiff claims that Ronquillo began to retaliate against him for filing a grievance against her. (Id.) Plaintiff further alleges that Ronquillo attempted to have Plaintiff "beat up" another inmate on her behalf. (Id.) When Plaintiff refused to start a fight, he alleges Ronquillo informed him that even though he did not currently have any enemies, she would "see that I would have some." (Id.) Plaintiff claims he also stopped receiving his halal religious meals as an act of retaliation by Ronquillo. (Id.) Plaintiff further alleges Ronquillo purposefully staged events so that fights would start among inmates. (Id.)
On one occasion, Plaintiff claims that the cell door of another inmate and Plaintiff's cell were purposefully left open so that they would engage in combat. (Id. at 4.) Inmate Newell is alleged to have "charged" at Plaintiff. (Id.) While this was happening, another correctional officer "yelled lock-down" but Ronquillo intervened and stated "let it happen, this is going to be a good one." (Id.) As another inmate was hitting Plaintiff, Plaintiff claims he was shot "with a block gun" four times. (Id. at 4-5.) Plaintiff claims that Ronquillo was known to set up fights among inmates. (Id. at 5.)
III. DEFENDANTS'MOTION TO DISMISSPURSUANT TO FED.R.CIV.P. 12(b)
As a preliminary matter, the Court will first consider Defendant's arguments that Plaintiff's Complaint should be dismissed for failing to exhaust available administrative remedies pursuant to FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a).
A. Standard of Review per FED.R.CIV.P.12(b) and 42 U.S.C. § 1997e(a)
Defendant Ronquillo claims Plaintiff failed to exhaust available administrative remedies pursuant to 42 U.S.C. § 1997e(a) before bringing this suit, therefore, Ronquillo seeks dismissal under the "non-enumerated" provisions of FED.R.CIV.P. 12(b). The Ninth Circuit has held that "failure to exhaust non-judicial remedies is a matter of abatement" not going to the merits of the case and is properly raised pursuant to a motion to dismiss, including a non-enumerated motion under FED.R.CIV.P. 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003)It is also well established that non-exhaustion of administrative remedies as set forth in 42 U.S.C. § 1997e(a) is an affirmative defense which defendant prison officials have the burden of raising and proving. See Jones v. Bock, 594 U.S. 199, 216 (2007); Wyatt, 315 F.3d at 1119. However, unlike under Rule 12(b)(6), "[i]n 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." Wyatt, F.3d at 1120.
B. Exhaustion of Administrative Remedies per 42 U.S.C. § 1997e(a)
The Prison Litigation Reform Act ("PLRA") amended 42 U.S.C. § 1997e(a) to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . 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). "Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory." Porter v. Nussle, 534 U.S. 516, 532 (2002). 42 U.S.C. § 1997e(a) has been construed broadly to "afford [ ] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case, id. at 525-26, and to encompass inmate suits about both general circumstances and particular episodes of prison life--including incidents of alleged excessive force. Id. at 532. Finally, "[t]he 'available' 'remed[y]' must be 'exhausted' before a complaint under § 1983 may be entertained," "regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 738, 741 (2001); see also McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002).
The State of California provides its prisoners and parolees the right to administratively appeal "any departmental policies, decisions, actions, conditions, or omissions that have a material adverse effect on the welfare of inmates and parolees." CAL. CODE REGS., tit. 15 § 3084.1(a) (2011). Prior to January 28, 2011, in order to exhaust available administrative remedies within this system, a prisoner would proceed through several levels: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. CAL. CODE REGS., tit. 15 § 3084.1(a) (2010). However, in January 2011, the process was changed. ...