The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Joseph Danny Prophet ("Plaintiff") is a former state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. The events at issue allegedly occurred at the California Substance Abuse Treatment Facility ("SATF") in Corcoran, California, while Plaintiff was incarcerated there. This action now proceeds on Plaintiff's Fourth Amended Complaint filed on December 17, 2010, against defendant Correctional Officer Queen, for use of excessive force in violation of the Eighth Amendment.*fn1 (Doc. 27.) On May 19, 2011, defendant Queen ("Defendant") filed a motion to dismiss this action for failure to exhaust administrative remedies before filing suit, for failure to comply with the statute of limitations, and based on qualified immunity. (Doc. 36.)
On July 21, 2011, Plaintiff filed an opposition to the motion.*fn2 (Doc. 41.) Defendant has not filed a reply to the opposition. Defendant's motion to dismiss is now before the Court.
II. SUMMARY OF PLAINTIFF'S ALLEGATIONS AGAINST DEFENDANT QUEEN
Plaintiff was a state prisoner incarcerated at SATF at the time of the events at issue, and defendant Queen was a Correctional Officer employed at SATF. Plaintiff alleges as follows in the Fourth Amended Complaint.*fn3 On or about March 6, 2004, there was a riot at SATF, and custody staff ordered all inmates to get down and lie on their stomachs. Plaintiff is medically disabled and played no part in the riot. As Plaintiff was getting down, he began to feel severe pain in his knees. Plaintiff's hands were pulled behind his back and handcuffed by Correctional Officer Queen in such a way that it caused severe pain in Plaintiff's shoulders. On March 9, 2004, Plaintiff was examined by a doctor and explained what had occurred that caused him severe pain in his shoulders and knees. As a result of his injuries, Plaintiff had to have surgery on both his knees and shoulders. An x-ray revealed that both Plaintiff's knees and shoulders were damaged, and Plaintiff has since been reclassified as permanently mobility impaired.
III. MOTION TO DISMISS FOR FAILURE TO EXHAUST
A. 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.
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 (2007). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). 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©. 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. In order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford, 548 U.S. at 85; McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).
Defendant argues that this action should be dismissed because Plaintiff failed to exhaust his administrative remedies before filing suit. Defendant submits evidence that there is no record at the Inmate Appeals Branch ("IAB") of Plaintiff submitting an administrative appeal, concerning the allegations in this action, between January 1, 2004 and December 30, 2005 which was accepted for Director's level review. (Declaration of D. Foston, Doc. 36-2 at ¶3.) Plaintiff submitted three appeals during the stated time period which ...