The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE DENIED (Doc. 116) FIFTEEN-DAY OBJECTION PERIOD
Findings and Recommendations Addressing Motion to Dismiss
Plaintiff James Lynn Wride, a state prisoner, filed this civil action on April 13, 2005. This action for damages is proceeding on Plaintiff's third amended complaint against Defendants County of Fresno, Burrows, Heggen, Kamlade, Snyder, and Sutakul for violation of Plaintiff's civil rights while he was incarcerated at the Fresno County Jail. Plaintiff alleges claims for relief pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 12132, and California tort law.
On January 24, 2012, Defendants filed a motion to dismiss for failure to exhaust the available administrative remedies. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on February 16, 2012, and Defendants filed a reply on February 27, 2012. The matter was taken under submission pursuant to Local Rule 230(g).
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA), "[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). Exhaustion is mandatory under the PLRA and unexhausted claims cannot be brought in court. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 (2007); Woodford v. Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378 (2006).
The failure to exhaust in compliance with the PLRA 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 v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust is subject to an unenumerated Rule 12(b) motion, and in resolving the motion, the Court may look beyond the pleadings and decide disputed issues of fact. Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010); Wyatt, 315 F.3d at 1119-20. If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
A. Summary of Defendants' Position
During the time period at issue, the Fresno County Jail had an inmate grievance process in place. (Doc. 117, Ramey-Cross Dec., Ex. A, pp. 1-8.) The policy provided in relevant part, "Inmates who wish to grieve a condition of confinement may submit an Inmate Grievance Form (J-105) within fourteen (14) days from the date of the incident relating to the grievance." (Id., p. 1.) "The officer who provides the Grievance Form to the inmate shall determine if the inmate's grievance can be resolved at that time by taking the appropriate action." (Id., p. 2.) "If the grievance cannot be resolved at line staff level, the inmate shall be provided with an Inmate Grievance Form." (Id.) "The officer who accepts the completed Inmate Grievance Form shall" ensure it is properly completed and determine if the grievance can be resolved. (Id.) If it cannot, the next level of review is conducted by a lieutenant or unit supervisor, followed by the Bureau Commander's final review. (Id., pp. 2-5.)
2. Effect of Untimely Grievance Submission
Plaintiff alleges that on June 1, 2004, jail staff used excessive physical force against him and seriously injured him, resulting in his placement in the medical unit of the jail. (Doc. 106, Third Amend. Comp; Doc. 118, Weldon Dec., Ex. A.) On July 29, 2004, Plaintiff alleges that he was removed from the medical unit where he had been housed and returned to general population, a move contraindicated by his physical condition, and he fell and broke his leg as a result of his improper transfer to general population. (Third Amend. Comp.; Motion, Dec. of Weldon, Ex. A.) On February 15, 2005, Plaintiff submitted two grievances regarding the incidents on June 1, 2004, and July 29, 2004, both of which Plaintiff signed on February 4, ...