The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES (ECF Nos. 18, 19)
OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations on Defendants' Motion to Dismiss
Plaintiff James John McBride, a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on December 2, 2010. (ECF No 1.) This action is proceeding against Defendants S. Lopez, R. Ruggles, M. Perez, D. Lopez, S. Kotch, and R. Athey for excessive force and R. Athey for failure to intervene in violation of the Eighth Amendment. (ECF No. 10.) On May 14, 2012, Defendants filed a motion to dismiss for failure to exhaust administrative remedies. (ECF No. 18.) Plaintiff filed an opposition on June 7, 2012. (ECF No. 19.)
In light of the decision in Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012), Plaintiff was provided with notice of the requirements for opposing a motion to dismiss on July 13, 2012, and granted thirty days in which to withdraw his opposition and file an amended opposition. (ECF Nos. 20, 21.) Plaintiff was advised that, if he failed to file an amended opposition, his existing opposition would be considered in deciding the motion to dismiss. More than thirty days have passed and Plaintiff has not filed an amended opposition.
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). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006). All available remedies must be exhausted, not just those remedies that meet federal standards, Woodford, 548 U.S. at 84, nor must they be "plain, speedy, and effective," Booth v. Churner, 532 U.S. 731, 739 (2001). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Id at 741; see Woodford, 548 U.S. at 93.
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense which defendants have the burden of raising and proving the absence of exhaustion. Lira v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). "In deciding a motion to dismiss for failure to exhaust, a court may look beyond the pleadings and decide disputed issues of fact." Sapp v. Kimbrell, 623 F.3d. 813, 821 (9th Cir. 2010) (quoting Wyatt, 315 F.3d at 1119-20). If the court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice, even where there has been exhaustion while the suit is pending. Lira, 427 F.3d at 1171.
Plaintiff alleges that Defendants S. Lopez, R. Ruggles, M. Perez, D. Lopez, S. Koch, and R. Athey hit and kicked him, breaking his nose and causing swelling to his head and eyes. Additionally,
Plaintiff claims that the defendants were under Defendant Athey's command and she refused to stop them from beating Plaintiff, but joined them in attacking him.
Defendants argue that Plaintiff failed to submit a timely inmate appeal regarding the incident alleged in the complaint and therefore has failed to exhaust his administrative remedies. Plaintiff concedes that he did not submit a timely appeal, but argues that his failure to submit an appeal was excused because he ...