The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED, DISMISSING THIS ACTION (Doc. 22.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Joaquin R. Quiroz ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 1, 2008. (Doc. 1.) This case now proceeds on Plaintiff's First Amended Complaint, filed on December 31, 2009, against defendants Correctional Officers ("C/Os") J. Figueroa, Jason Fleming, Chris Mazzie, and Jose Verena, Jr., for use of excessive force against Plaintiff in violation of the Eighth Amendment; and against defendant C/O David Kent for failure to intercede in violation of the Eighth Amendment. (Doc. 12.) On August 3, 2011, defendants Figueroa, Fleming, Mazzie, Verena, and Kent ("Defendants") filed a motion to dismiss this action based on Plaintiff's failure to exhaust administrative remedies before filing suit. (Doc. 22.) On September 20, 2011, Plaintiff filed an opposition to the motion.*fn1 (Doc. 25.) On September 28, 2011, Defendants filed a reply to Plaintiff's opposition. (Doc. 26.) Defendants' 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." 42 U.S.C. § 1997e(a). 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; 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 is a state prisoner presently incarcerated at Ironwood State Prison in Blythe, California. The events at issue in this action allegedly occurred at Kern Valley State Prison ("KVSP") in Delano, California, while Plaintiff was incarcerated there. In the First Amended Complaint, Plaintiff names defendants C/Os J. Figueroa, Jason Fleming, Chris Mazzie, Jose Verena, Jr., and David Kent.
Plaintiff alleges as follows in the First Amended Complaint. On October 6, 2005, while in the releasing and receiving area ("R&R") at KVSP, Plaintiff and Officer Terry Forte had a disagreement about the amount of property that Plaintiff had brought with him from Wasco State Prison. Plaintiff struck Officer Terry Forte in the face. Soon afterward, C/O J. Figueroa, C/O Fleming, C/O Mazzie and C/O Varela tackled Plaintiff to the ground and placed him in handcuffs. Plaintiff does not dispute the necessary use of force against him before he was placed in handcuffs. However, Plaintiff contends that once he was in handcuffs, the use of force was no longer necessary.
While Plaintiff was immobile on the ground in handcuffs, the four named officers repeatedly kicked, kneed and punched Plaintiff. Plaintiff was hit across the face with a pair of handcuffs that caused two lacerations consistent with the width of a pair of cuffs. Plaintiff bled profusely from his injuries. Plaintiff was then dragged through R&R as he bled, and his head was slammed against an exit door leading to the outside, away from the view of other inmates. Once outside, Plaintiff was told, "You fucked up," and a spit mask was placed over Plaintiff's head and reversed to the side with no view. Plaintiff then heard one of the officers say, "Welcome to Kern Valley," whereupon Plaintiff was beaten, kicked and punched until he lost consciousness. When Plaintiff awoke, he was on his stomach in handcuffs on a holding cell bench, bleeding.
C/O David Kent was present during the assault and stood by watching the named officers assault Plaintiff, without intervening. C/O David Kent also failed to accurately report the incident, by omitting information from his written report in order to exculpate his counterparts.
All documentation in the report of this incident states that Plaintiff was restrained after a brief scuffle and then lifted to his feet, handcuffed, and escorted outside away from all other inmates. However, documentation via photographs taken by Officer Trupe Phillip shows that Plaintiff's blood was found all over R&R, consistent with Plaintiff's version of the events and inconsistent with the officers' reports. None of the participating officers reported Plaintiff's injuries or the blood on the floor in R&R.
During his emergency room visit, Plaintiff told medical staff that his injuries were caused by horseplay in a holding cell, during which Plaintiff fell on the holding cell bars. These statements were untrue and were only made in fear that if Plaintiff said otherwise he would be assaulted again. At the time of ...