The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND DISMISSING CERTAIN CLAIMS WITHOUT PREJUDICE (DOC. 51) ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS (DOC. 40)
Plaintiff James E. Bryant ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed August 5, 2009, against Defendants J. Knight and Davis ("Defendants") for retaliation in violation of the First Amendment and excessive force in violation of the Eighth Amendment. Pending before the Court is Defendants' motion to dismiss certain claims for failure to exhaust administrative remedies, filed August 31, 2011. Defs.' Mot. Dismiss, Doc. 51. On October 18, 2011, Plaintiff filed a document, indicating that he had addressed the issue of exhaustion in a prior filing on August 19, 2011. Docs. 47, 57. The Court will construe the August 19, 2011 as an opposition.*fn1 On October 20, 2011, Defendants' filed a document construed as their reply. Doc. 58.
On June 22, 2011, Plaintiff filed a motion for monetary sanctions against Defendants. Doc. 40. Defendants filed their opposition on August 26, 2011. Doc. 49. Plaintiff filed a reply on August 19, 2011. Doc. 47. The matter is submitted pursuant to Local Rule 230(l). The Court will first address the motion to dismiss.
Plaintiff was incarcerated at California Substance Abuse Treatment Facility ("SATF") in Corcoran, California. On December 20, 2007, Defendant J. Knight had the yard control booth officer order the Plaintiff to go from the back of the medication line to the front. The weather was very cold, and the other inmates would not appreciate Plaintiff skipping ahead of them. Defendant Knight then told Plaintiff that he could either go to the front of the line as ordered, go back to the unit without breakfast, or go to the holding cage. Plaintiff chose the holding cage. Plaintiff headed to the program office and informed Lieutenant Baires that Defendant Knight had ordered Plaintiff to report to the cage. Defendant Knight then arrived, asked what Plaintiff was doing, and then shoved him against the wall and ordered Plaintiff to turn around. Plaintiff complied. Defendant Knight then, without any provocation, placed Plaintiff in a hammer headlock and began choking him sadistically and maliciously. Defendant Knight lifted him off the ground and placed him in the holding cage. Plaintiff subsequently filed inmate grievances against both Defendants.
On December 2008, Defendant Davis, Plaintiff's work supervisor, refused to allow Plaintiff to come to work in retaliation for Plaintiff filing a complaint against him. On January 24, 2009, Defendants Knight and Davis put another inmate up to viciously assault Plaintiff in retaliation for Plaintiff filing inmate grievances against them.
Plaintiff alleges a violation of the Eighth Amendment and the state law claim of negligence. Plaintiff requests as relief monetary damages.
III. Exhaustion Of Administrative Remedies
Pursuant to the Prison Litigation Reform Act of 1995, "[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 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). 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 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt, 315 F.3d at 1119. 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 curiam)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed ...