The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT HOUGH'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED, DISMISSING THIS ACTION IN ITS ENTIRETY OBJECTIONS, IF ANY, DUE IN THIRTY DAYS (Doc. 70.)
Norris Lee ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at Corcoran State Prison in Corcoran, California. The events at issue allegedly occurred at the California Substance Abuse Treatment Facility ("SATF") in Corcoran, California, when Plaintiff was incarcerated there. Plaintiff filed the Complaint commencing this action on January 8, 2002. (Doc. 1.) This action now proceeds on Plaintiff's Second Amended Complaint filed on March 23, 2010, against defendant Correctional Officer ("C/O") E. Hough ("Defendant"), for failure to protect Plaintiff in violation of the Eighth Amendment.*fn1 (Doc. 36.) On March 15, 2011, Defendant filed a motion to dismiss the claims against him for failure to exhaust administrative remedies. (Doc. 70.) On July 20, 2011, Plaintiff filed an opposition to the motion. (Doc. 92.) On July 27, 2011, Defendant filed a reply to Plaintiff's opposition.*fn2 (Doc. 94.) Defendant's motion to dismiss is now before the Court.
II. STATUTORY EXHAUSTION REQUIREMENT
Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that "[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." 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 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which Defendant has the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216, 127 S.Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
III. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff was a state prisoner at SATF at the time of the events at issue, and defendant Hough was a Correctional Officer employed at SATF. Plaintiff alleges as follows in the Second Amended Complaint.*fn3
On July 5, 2000 and July 10, 2000, Plaintiff was brutally assaulted, on each occasion by two inmates. On July 10, 2000, two inmates attacked Plaintiff in the dining room during the morning meal in full view of Correctional Officers including C/O E. Hough. During the assault, Plaintiff suffered repeated blows (by kicks and fists) to his head, causing Plaintiff to lose consciousness twice during the attack. The two inmates who attacked Plaintiff on July 10, 2000 had stolen all of Plaintiff's property on July 7, 2000. The Correctional Officers failed to protect Plaintiff, who was in protective custody. As a result of the two assaults, Plaintiff suffers from constant severe recurring headaches, loss of concentration, lapses in memory, blurred vision, loss of vitality, diminished depth perception, and concussion. Plaintiff requests monetary, declaratory, and equitable relief.
IV. MOTION TO DISMISS FOR FAILURE TO EXHAUST
The Court takes judicial notice of the fact that the California Department of Corrections and Rehabilitation ("CDCR") has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (West 2009). The process is initiated by submitting a CDCR Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. at § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378 (2006); McKinney, 311 F.3d at 1199-1201.
Defendant argues that Plaintiff's claims against him should be dismissed from this action because Plaintiff failed to exhaust his administrative remedies with regard to Plaintiff's claims against Defendant. Defendant submits evidence that Plaintiff only submitted one inmate appeal at SATF regarding the alleged July 2000 altercations between Plaintiff and other inmates at SATF, and the appeal does not concern Plaintiff's allegations that Defendant Hough failed to protect him. (Declaration of Gomez ("Gomez Decl."), Doc. 64-3 at ¶¶3- 5, and Exhibit "A" to the Declaration.) Instead, the appeal ...