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. 70, 74, 77)
OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations on Defendants' Motion to Dismiss
Plaintiff Michael Eugene Hollis ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.*fn1 This action is proceeding on the third amended complaint, filed September 26, 2011, against Defendants Dawson and Calvert for deliberate indifference to conditions of confinement in violation of the Eighth Amendment. (ECF NO. 67.) On June 29, 2012, Defendants filed a motion to dismiss for failure to exhaust administrative remedies. (ECF No. 70.)
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 for failure to exhaust on July 24, 2012, and granted thirty days in which to file an opposition to the motion to dismiss. (ECF Nos. 72, 73.) On July 30, 2012, Plaintiff filed an opposition to the motion to dismiss, motion for summary judgment, affidavit, and statement of timely response. (ECF Nos. 74, 75, 77, 78.) Defendants filed an opposition to Plaintiff's motion for summary judgment on August 15, 2012. (ECF No. 79.)
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). The PLRA applies to pretrial detainees. 42 U.S.C. § 1997e(h). 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.
B. Relevant Allegations in Third Amended Complaint
Plaintiff was housed at the Fresno County Jail ("FCJ") from August 18, 2008, until June 16, 2009. (Third Am. Compl. 6,*fn2 ECF No. 50.) Plaintiff alleges that FCJ only issues two pairs of socks and his feet were frozen and numb from the cold. (Id. at 12.) While Plaintiff was housed at FCJ he was subjected to inhumanely cold temperatures and only provided with meager bedding to keep warm. On October 10, 2008, Plaintiff claims that he experienced his first extremely cold night at FCJ and suffered from extremely cold temperatures from October through November 2008. (Id. at 12, 14.) Plaintiff complained of the cold temperatures from October 2008 through March 2009. (Id. at 14.)
Plaintiff filed grievances regarding the cold temperatures on November 23, 2008, and November 29, 2008. On December 2, 2008, Defendants Dawson and Calvert came to take a temperature reading. Plaintiff alleges that the laser was pointed at the skylight on the sunny side of the building and showed a temperature of 64 degrees which did not reflect the true temperature of the cell. Plaintiff alleges that Defendant Dawson told him to "quit his whining" and that it was even colder on the sixth floor. Plaintiff states that he had allowed himself to be talked into working with Defendant Dawson and withdrawing his grievance. (Id. ...