The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding with a civil rights complaint filed pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's complaint against defendants A. Perez, Providence and Pompey, who are correctional officers. Plaintiff alleges that defendant Perez violated his Eighth Amendment right to be free from cruel and unusual punishment when she spread a rumor that plaintiff was a "snitch." Plaintiff's claims against defendant Providence are that he falsified an interview with plaintiff and that he was placed in administrative segregation by Providence because he failed to drop a complaint against Pompey. Finally, plaintiff claims that Pompey roughed him up. Defendants have filed a motion for summary judgment arguing that plaintiff failed to exhaust his administrative remedies. Additionally, defendants argue that there is no evidence to support the claims made against the defendants and/or the defendants are entitled to qualified immunity. For the following reasons, it will be recommended that this action be dismissed without prejudice due to plaintiff's failure to exhaust administrative remedies.
II. EXHAUSTION OF ADMINISTRATIVE REMEDIES
The Prison Litigation Reform Act ("PLRA") provides 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). Pursuant to this rule, prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. See Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion also requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules. See Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
The PLRA requires that administrative remedies be exhausted prior to filing suit. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). However, the exhaustion requirement is not jurisdictional, but an affirmative defense that may be raised by a defendant in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). See Jones v. Bock, 549 U.S. 199, 216 (2007) ("inmates are not required to specially plead or demonstrate exhaustion in their complaints"); Wyatt v. Terhune, 315 F.3d 1108, 1117--19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. See id. at 1119.
"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20 "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust -- a procedure closely analogous to summary judgment -- then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120 n.14.
When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) ("mixed" complaints may proceed on exhausted claims). Thus, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
"The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Id. at 218. In California, prisoners are required to lodge their administrative complaint on a CDC Form 602, which requires only that the prisoner "describe the problem and action requested." CAL.CODE REGS. tit.
15, § 3084.2(a). In Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009), the Ninth Circuit adopted the standard enunciated by the Seventh Circuit, which provides that "when a prison's grievance procedures are silent or incomplete as to factual specificity, a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought." Id. at 1120 (reviewing Arizona procedures) (internal quotation marks and citation omitted). Thus, in California, "[a] grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Id.; see also Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010).
"[E]xhaustion is not per se inadequate simply because an individual later sued was not named in the grievances." Jones, 549 U.S. at 219. It is nonetheless appropriate to require that a prisoner demonstrate, through the administrative grievance process and consistent with the PLRA, that he has standing to pursue his claims against a particular defendant. "[A]t an irreducible minimum, Art[icle] III [of the United States Constitution] requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.' " Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).
Plaintiff's claim against defendant Perez is that she told other inmates that plaintiff was a snitch which endangered his life. (See Third Am. Complaint at p. 2-3; Pl.'s Opp'n Defs.' Mot. Summ. J. at p. 6 ("Mr. Jefferson's complaint alleges that Defendant Perez informed other inmates that he was a snitch which endangered Mr. Jefferson's life.").) The prison had an inmate grievance system in place whereby the inmate appeal had to be submitted within fifteen working days of the event or decision that was the subject of the appeal. During the applicable time period of plaintiff's claim against Perez, plaintiff submitted five inmate appeals. (See Defs.' Statement Undisputed Facts ("DUP") ¶ 11 ("A review of Jefferson's inmate appeal records found that in June through August 2009, Jefferson submitted five inmate appeals that were processed for further review.").) In an appeal that was received for second level review on June 18, 2009 (log number CMF-M-0901607), Jefferson complained that an Officer Desouza took his copy of Jet Magazine. (See DUP ¶ 12.) In an appeal that was received for second level review on July 21, 2009 (log number CMF-M-09-01853), Jefferson complained about elections to the Men's Advisory Council. (See id. ¶ 13.) In an appeal that was received for second level review on August 5, 2009 (log number CMF-M-02017), Jefferson complained that Perez had told him about her lawsuits, that she practiced favoritism towards inmates, and that Perez called him a "trouble maker faggot." (See id. ¶ 14.) In an appeal received for first level review on ...