The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS (DOC. 23)
Plaintiff Tony Eugene Saffold ("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 first amended complaint, filed November 15, 2010, against Defendants T. Reynolds and J. Roberts for failure to protect in violation of the Eighth Amendment. Pending before the Court is Defendants' motion to dismiss, filed October 5, 2011, pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure, for Plaintiff's failure to exhaust administrative remedies. Defs.' Mot. Dismiss, Doc. 23. Plaintiff filed an opposition on October 21, 2011. Docs. 24, 25, 26.*fn1 On October 26, 2011, Defendants filed their reply. Doc. 27. The matter is submitted pursuant to Local Rule 230(l).
II. Summary Of Amended Complaint
At all times relevant to this action, Plaintiff was confined at Avenal State Prison. On September 25, 2008, Plaintiff asked Defendant Reynolds for his legal materials. He was denied. On his way to his cell, Plaintiff was attacked by another prisoner who socked him in the face while he had glasses on. The force of the blow caused Plaintiff to hit his head on the bottom of the stairs. Defendants Reynolds and Roberts watched as the prisoner beat Plaintiff until he was tired. Defendant Reynolds then tightly handcuffed Plaintiff. Plaintiff states a cognizable claim for violation of the Eighth Amendment against Defendants Reynolds and Roberts.*fn2 Plaintiff requests as relief monetary damages and costs of suit, and a transfer to another prison.
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 issues of fact. Id. 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 CDCR has an administrative grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). The process is initiated by submitting a CDC Form 602. Id. § 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. § 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. §§ 3084.5, 3084.6(c). In order to satisfy § 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 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always require pursuit of an appeal through the Director's Level of Review. What is required to satisfy exhaustion is a fact specific inquiry, and may be dependent upon prison officials' response to the appeal. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (improper reasons for screening inmate's appeal is equitable exception to exhaustion); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of exceptions to exhaustion requirement from other circuits); Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005) ("[E]ntirely pointless exhaustion" not required).
Defendants contend that Plaintiff failed to exhaust any grievances, because none of these appeals are contained in Plaintiff's Inmate/Parolee Appeals Tracking System. Defs.' P. & A. 3:1-5. Defendants attach a declaration by D. Foston, Chief of the Office of Appeals branch for CDCR. D. Foston Decl. ¶ 2. Foston declares that Plaintiff did not exhaust any appeal regarding property or failure to protect from September 2008 to June of 2009, which includes the period when the alleged Eighth Amendment claim in this action occurred. Id. ¶ 7. This ...