The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT SEXTON'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Norman Ivory ("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 Pleasant Valley State Prison in Coalinga, California. The events at issue allegedly occurred at Avenal State Prison ("ASP") in Avenal, California, while Plaintiff was incarcerated there. This action now proceeds on Plaintiff's original Complaint filed on July 20, 2009, against defendant Correctional Officer S. Meraz for use of excessive force in violation of the Eighth Amendment, and defendant Captain M. V. Sexton for retaliation in violation of the First Amendment.*fn1 (Doc. 1.) On May 27, 2011, defendant Sexton ("Defendant") filed a motion to dismiss the claims against him for failure to exhaust administrative remedies before filing suit, and for failure to state a claim upon which relief may be granted against him. (Doc. 44.) On June 24, 2011, Plaintiff filed an opposition to the motion.*fn2 (Doc. 57.) On July 1, 2011, Defendant filed a reply to Plaintiff's opposition. (Doc. 58.) 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 ASP at the time of the events at issue, and defendant Sexton was a Correctional Captain employed at ASP. Plaintiff alleges as follows in the Complaint.*fn3
Plaintiff alleges a pattern of harassment following his attempt to informally resolve prison officials' failure to comply with the minimum standards for the Jewish Kosher Meal Program, and his submission of a group appeal on the issue. Further, Plaintiff alleges harsh treatment by Officers Valdez, Foucht, and Meraz on January 27, 2009, after he was transferred to Facility 6 following the submission of the group appeal. Plaintiff alleges that immediately prior to his transport to administrative segregation, he overheard Defendant Sexton telling Officers Valdez and Foucht that this ought to teach Plaintiff about challenging them with all of those appeals, and that Plaintiff was lucky they did not kick his teeth in.
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 Sexton 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 ASP has no record of Plaintiff submitting an administrative appeal in 2008 or 2009 claiming that his placement in administrative segregation was the result of retaliation by Defendant or any other prison official. (Declaration of N. Lopez, Doc. 44-2 at ¶¶4, 5.) N. Lopez, Appeals Coordinator at ASP, declares that he reviewed the record of appeals filed by Plaintiff in 2008 and 2009 at ASP, and the records of ...