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, DISMISSING THIS ACTION (Doc. 90.) OBJECTIONS, IF ANY, DUE IN TWENTY(20) DAYS
Howard Young ("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 August 2, 2007. (Doc. 1.) This action now proceeds on the Second Amended Complaint filed by Plaintiff on August 31, 2009, against only one defendant, Correctional Officer Barron ("Defendant"), for retaliation against Plaintiff in violation of the First Amendment.*fn1 (Doc. 42.)
On May 23, 2011, Defendant filed a motion to dismiss this action based on Plaintiff's failure to exhaust administrative remedies before filing suit. (Doc. 90.) On June 27, 2011, Plaintiff filed an opposition to the motion.*fn2 (Doc. 96.) On July 1, 2011, Defendant filed a reply to Plaintiff's opposition. (Doc. 97.) 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." 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*fn3
At the time of the events at issue, Plaintiff was a state prisoner at the California Substance
Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California, and defendant Barron was a Correctional Officer working at SATF.
Plaintiff alleges as follows. On May 29, 2007, in retaliation for Plaintiff filing an inmate grievance, Officer Barron removed Plaintiff from his cell and then removed all of Plaintiff's personal property, including legal materials, religious books, prescription eyeglasses, personal hygiene items, and stationery supplies.
Beginning on May 30, 2007, Plaintiff filed several prison appeals for return of his property. On July 4, 2007, Officer Barron was interviewed regarding Plaintiff's appeals and said, in retaliation, that Plaintiff tensed his muscles and jerked away from him while being escorted to another cell, which was not true and is not an Administrative Segregation ("Ad-Seg") offense. Plaintiff was then issued a Rules Violation report and rehoused in the Ad-Seg Unit, based on Officer Barron's testimony, for "present[ing] an immediate threat to the safety of self or others" and "endanger[ing] institution security." Officer Barron enforced an illegal ...