The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. All parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). This case is proceeding on plaintiff's amended complaint against defendants Hemp and Chandless (claim one), and Cornett and Read (claim three). (Dkt. Nos. 23; 27.) Pending before the court is defendants' motion to dismiss these claims based on plaintiff's alleged failure to first exhaust administrative remedies, and failure to plead facts sufficient to state a claim for relief under Fed. R. Civ. P. 12(b)(6).
After carefully reviewing the record, the undersigned concludes that defendant's motion to dismiss is granted based on plaintiff's failure to first exhaust administrative remedies in connection with his first and third claims, and this action should be dismissed.
II. Plaintiff's Amended Complaint
Plaintiff's claims arise from a fight among inmates at the Yuba County Jail, including plaintiff, on December 25, 2009. In his first claim, plaintiff contends that defendants Hemp and Chandless failed to place plaintiff in protective custody to protect plaintiff from an attack by other inmates on December 25, 2009, allegedly violating plaintiff's Eighth Amendment rights. (Dkt. No. 13 at 5-6.) In his third claim, plaintiff alleges that defendants Cornett and Read allegedly retaliated against plaintiff by placing him in administrative segregation because of a complaint he filed challenging the jail policy. (Dkt. No. 13 at 7.)
III. Motion to Dismiss - Failure to Exhaust
Defendants claim that plaintiff failed to first exhaust his administrative remedies as to plaintiff's remaining claims. Plaintiff filed an opposition; defendants filed a reply.
A. Legal Standard re Exhaustion
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide 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). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734.
The fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records). The Supreme Court has cautioned courts against reading futility or other exceptions into the PLRA exhaustion requirement. See Booth, 532 U.S. at 741 n.6.
A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Id., at 936-37.
As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, compliance with grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84. When the rules of the prison or jail do not dictate the requisite level of detail for proper review, a prisoner's complaint "suffices if it alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). This requirement is so because the primary purpose of a prison's administrative review system is to "notify the prison of a problem and to facilitate its resolution." Griffin, 557 F.3d at 1120.
Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court may look beyond the pleadings to determine whether a plaintiff exhausted his administrative remedies. Id. at 1119-20.
B. Analysis re Exhaustion
At the time the underlying claims accrued, plaintiff was housed in the Yuba County Jail. Defendants provided the declaration of Jerry Read, Undersheriff for the Yuba County Sheriff's Department, who described the grievance procedure for prisoners held in the Yuba County Jail, and submitted a copy of the Inmate Handbook that is provided to each inmate upon arrival. (Dkt. No. 35-2 at 12.)
i. Eighth Amendment Claim (First Claim)
In his first claim, plaintiff contends that defendants Hemp and Chandless failed to protect plaintiff from a prison attack on December 25, 2009, despite plaintiff's "repeated requests orally and in writing[,] pleading to protect [him] from the white supremacists and their continual threats to do [plaintiff] harm." (Dkt. No. 13 at 3-4.) Plaintiff avers he requested "protective custody" just two days before the assault, but his request was denied. (Id. at 3.) ...