The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF No. 23) TWENTY DAY DEADLINE
Plaintiff Marlin Lattereal Royal ("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 this action on August 12, 2009. On September 6, 2011, pursuant to 28 U.S.C. § 1915A, the Court issued an order that this action shall proceed as one for damages on Plaintiff's first amended complaint, filed August 19, 2010, against Defendant Knight for excessive force and deliberate indifference to conditions of confinement in violation of the Eighth Amendment and retaliation in violation of the First Amendment; against Defendants Gardner and Clark*fn1 for failure to protect in violation of the Eighth Amendment; and against Defendant Turner for deliberate indifference to conditions of confinement in violation of the Eighth Amendment.*fn2 (ECF No. 17.)
Defendants filed a motion to dismiss for failure to exhaust administrative remedies on December 1, 2011. (ECF No. 23.) Plaintiff filed an opposition*fn3 on December 27, 2011, and Defendants filed a reply on December 28, 2011. (ECF Nos. 24, 25.) Following the issuance of an order directing Defendants to provide documents to the court, Defendants filed a supplement on February 23, 2012. (ECF Nos. 28, 29.)
Defendants argue that Plaintiff failed to exhaust all his claims, other than the excessive force claim against Defendant Knight alleged to have occurred on January 28, 2009, in compliance with 42 U.S.C. § 1997e(a), subjecting the claims to dismissal. 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). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006). All available remedies must be exhausted, not just those remedies that meet federal standards, Woodford, 548 U.S. at 84, nor must they be "plain, speedy, and effective," Booth v. Churner, 532 U.S. 731, 739 (2001). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Id at 741; see Woodford, 548 U.S. at 93.
The California Department of Corrections and Rehabilitation 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. At the time of the incidents alleged in the complaint, 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, 548 U.S. at 85-86.
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense which defendants have the burden of raising and proving the absence of exhaustion. Lira v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). 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 v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (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, a court may look beyond the pleadings and decide disputed issues of fact." Sapp v. Kimbrell, 623 F.3d. 813, 821 (9th Cir. 2010) (quoting 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, even where there has been exhaustion while the suit is pending. Lira, 427 F.3d at 1171.
Plaintiff alleges that, on January 28, 2009, Defendant Knight grabbed Plaintiff by his right shoulder and pushed him into his cell. Instantly, Plaintiff felt pain to his shoulder, neck, head, and back. Defendant Gardner watched while Defendant Knight slammed Plaintiff into the cell frame twice and Defendant Gardner did not press his alarm, call for back-up, or attempt to stop Defendant Knight.
Plaintiff's mother contacted Defendant Clark by telephone and was assured that threats and future assaults would stop. On March 25, 2009, Defendant Knight told Plaintiff that he would be placed in administrative segregation if he did not withdraw his complaints and for his family members to stop calling the warden. On April 1, 2009, Defendant Knight filed a false rule violation report. While Plaintiff was in a stand up cage in a side room, Defendant Knight told Plaintiff that he had Plaintiff's special purchase television set and Plaintiff would never see it and punched Plaintiff in the eye. Plaintiff was left in the cage for five to six and one half hours and was denied food and a bathroom by Defendants Knight and Turner.
Plaintiff alleges that Defendant Turner told him that correctional officers stick together and he needed to drop his complaint if he did not want any further problems. In February and March 2009, Plaintiff filed a staff complaint and in March 2009, he sent a letter to Defendant Clark informing him that Defendant Turner offered to order the property ...