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. 31)
FIFTEEN-DAY OBJECTION PERIOD
Findings and Recommendations Addressing Motion to Dismiss
Plaintiff Jason Latrell Thomas, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 4, 2010. This action is proceeding on Plaintiff's verified complaint against Defendants Salinas, Jr., Maldonado, Wilber, Vikjord, Frescura, Price, Hernandez, and Castro (Defendants) on Plaintiff's numerous First Amendment retaliation claims and on Plaintiff's Eighth Amendment excessive force claim. Plaintiff's claims arise from a series of interrelated events which occurred at California State Prison-Corcoran in 2006 and 2007.*fn1
On October 11, 2011, Defendants filed a motion to dismiss five retaliation claims on the ground that Plaintiff failed to exhaust the available administrative remedies.*fn2 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on December 1, 2011; after obtaining an extension of time, Defendants filed a reply on December 12, 2011.*fn3 *fn4 Local Rule 230(l). Plaintiff's surreply, which was filed without leave of court on December 21, 2011, is not considered. Id.
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, 127 S.Ct. 910 (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, 1825 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983, 992 (2002).
The failure to exhaust in compliance with section 1997e(a) 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).
Plaintiff is proceeding, in relevant part, on First Amendment retaliation claims arising from his allegations that on November 1, 2006, Defendant Vikjord handed him a returned letter with "deceased" written on it, and that in November 2006, Defendants Vikjord and Frescura threatened him with disciplinary action, and Defendant Vikjord issued false disciplinary reports against him. Plaintiff is also proceeding on a claim against Defendants Salinas and Maldonado, for failing, as supervisors, to intervene, despite being on notice of the retaliation against Plaintiff, and on a claim against Defendants Vikjord, Hernandez, Price, and Frescura for attacking him while he was handcuffed.*fn5 It is these five retaliation claims which Defendants seek to dismiss for failure to exhaust.
B. Summary of Defendants' Motion
The California Department of Corrections and Rehabilitation (CDCR) has an administrative grievance system for prisoners' complaints, and the process is initiated by submitting a CDCR Form 602. Cal. Code Regs., tit. 15 §§ 3084.1, 3084.2(a). During the relevant time period, four levels of appeal were involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level," and appeals ...