ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, DENYING ALL OTHER PENDING MOTIONS AS MOOT, AND DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST (Docs. 39, 41-45, 47, 52-57, 63)
Plaintiff, Isabel Tubach ("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 this action on May 21, 2010. *fn1 (Doc. 1.) However, the Court is proceeding on Plaintiff's Third Amended Complaint, filed June 21, 2011, against Defendant M. Guzman ("Defendant") for violation of the Eighth Amendment arising from the conditions of Plaintiff's confinement and for deliberate indifference to her serious medical needs. (Docs. 28, 33, 34.)
On March 12, 2012, Defendant 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, *fn2 to which Defendant replied. (Docs. 64, 65.) The matter is deemed submitted. Local Rule 230(l).
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).
At all times relevant, Plaintiff was a state inmate in the custody of the CDCR at Central California Women's Facility (CCWF), in Chowchilla, California and Defendant was employed at CCWF as a correctional officer. (Doc. 28, 3rd.A.C.; Doc. 33, Cog. Claim O.)
Plaintiff alleges that Defendant incited Plaintiff's cellmates to place poison in her nose and to provoke her to have a heart attack. (Doc. 28, 3rd.A.C.; Doc. 33, Cog. Claim O.) Plaintiff also alleges that her cellmates held her down to place the poison in her nose which caused her to become unable to speak, to become breathless, and caused her blood pressure to climb to "230" for which she was taken to the hospital. (Doc. 28, 3rd.A.C.; Doc. 33, Cog. Claim O.)
Plaintiff further alleges that Defendant is stopping Dr. Ezenwngo from treating her tongue cancer, which has spread to her throat, palate, and gums. (Doc. 28, 3rd.A.C.; Doc. 33, Cog. Claim O.) Plaintiff claims that Defendant is aware of her condition and knows that ice chips are her only relief from burning in the areas where she has cancer, but that Defendant "is stopping and denying a [sic] ice-chrono." (Id.) Plaintiff also alleges that Defendant gives her cellmates poison, sends them to put it in her nose, and encourages them to harass and provoke her into having a heart attack, which has actually caused her to have two heart attacks. (Id.)
Defendant argues that Plaintiff did not submit any appeals that were accepted at any level of review concerning Defendant's alleged actions. (Doc. 42, MTD; Foston Decl. ¶¶ 6-9; Hall Decl. ¶¶ 3-7; Zamora Decl. ¶ 5.)