The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS'
MOTION TO DISMISS BE GRANTED (ECF No. 45) OBJECTIONS DUE WITHIN FOURTEEN
Plaintiff Donald B. Williams ("Plaintiff") is a state prisoner proceeding in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff began this action by filing his Complaint on February 2, 2011. (ECF No. 1.) On March 17, 2011, the Court issued an order dismissing Plaintiff's Complaint with leave to amend. (ECF No. 9.) Plaintiff filed a First Amended Complaint on April 20, 2011. (Am. Comp., ECF No. 15.) On August 29, 2011, the Court screened Plaintiff's First Amended Complaint pursuant to 28 U.S.C. § 1915(A)(a), and found that Plaintiff stated a cognizable claim against Defendants Enenmoh, Faria, LeMay, Byers and Oneyeje for allegedly violating the Eighth Amendment by acting with deliberate indifference to Plaintiff's serious medical needs. (ECF No. 20.)
On March 28, 2012, Defendants Enenmoh, Faria, LeMay, and Oneyeje filed a motion to dismiss on the ground that Plaintiff had failed to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a). (Defs.' Mot., ECF No. 45.) On April 2, 2012, Defendant Byers filed a notice of joinder in this motion to dismiss. (ECF No. 48.) Plaintiff failed to timely file an opposition and the Court issued findings and a recommendation that Defendants' motion be granted. (ECF No. 50.) Thereafter, the Court was informed that Plaintiff's non-response was a result of difficulties communicating with his court appointed counsel. (ECF No. 52.) Accordingly, the Court vacated the findings and recommendations and ordered Plaintiff's counsel to file an opposition. (ECF No. 56.) Plaintiff's counsel filed an opposition on July 15, 2012 (ECF No. 57), but the Court found it inadequate and Plaintiff again informed the Court that he had not had adequate communication with his counsel (ECF No. 58). Also during this interim period, Defendants filed a reply. (Defs.' Reply, ECF No. 59.) After holding a telephonic conference with Plaintiff and Plaintiff's counsel, the Court gave Plaintiff's counsel another opportunity to file an opposition. (ECF Nos. 65, 66.)
Plaintiff's counsel ultimately filed an opposition on October 5, 2012. (Pl.'s Opp'n, ECF No. 67.) It was untimely. Nevertheless, and despite Defendants' objections to it (ECF Nos. 68 & 69), the Court, giving due regard to Plaintiff's difficulties communicating with his attorney, has considered Plaintiff's points and authorities even though not timely filed.
Defendant's motion to dismiss is now ready for ruling.
The Prison Litigation Reform Act ("PLRA") stipulates, "No 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). Therefore, prisoners are required to exhaust all available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007). The Supreme Court held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the exhaustion of remedies is required, regardless of the relief sought by the prisoner, as long as the administrative process can provide some sort of relief on the prisoner's complaint. Booth v. Churner, 532 U.S. 731, 741 (2001).
The California Department of Corrections and Rehabilitation ("CDCR") has an administrative grievance system for prisoner complaints; the process is initiated by submitting a CDCR Form 602. Cal. Code Regs., tit. 15, §§ 3084.1, 3084.2(a) (2009). During the time relevant to this case, four levels of appeal existed: an informal level, a first formal level, a second formal level, and a third formal level, also known as the "Director's Level"; each successive appeal had to be submitted within fifteen working days of the event being appealed. Id. at §§ 3084.5, 3084.6(c).*fn1 To properly exhaust administrative remedies, a prisoner must comply with the deadlines and other applicable procedural rules. Woodford v. Ngo, 548 U.S. 81, 93 (2006).
The exhaustion requirement of § 1997e(a) is not a pleading requirement, but rather an affirmative defense. Defendants have the burden of proving plaintiff failed to exhaust the available administrative remedies before filing a complaint in the District Court. Jones v. Bock, 549 U.S. 199, 216 (2007). A motion raising a prisoner's failure to exhaust the administrative remedies is properly asserted by way of an unenumerated motion under Fed. R. Civ. P 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003); Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium). In determining whether a case should be dismissed for failure to exhaust administrative remedies, "the court may look beyond the pleadings and decide disputed issues of fact" in a procedure that is "closely analogous to summary judgment." Id. at 1119--20. When the court concludes the prisoner has not exhausted all of his available administrative remedies, "the proper remedy is dismissal without prejudice." Id.
In his Amended Complaint, Plaintiff alleges:
He has been a type II insulin-dependent diabetic since 2001. (Am. Compl. at 5.) He suffers from both hypo- and hyper-glycemia, i.e. low and high blood sugar levels. (Id. at 5.) Plaintiff was transferred to California State Prison at Corcoran on July 26, 2010 on an emergency medical transfer. (Id. at 7.) Defendant Enenmoh authorized this transfer. (Id. at 7.) Upon Plaintiff's transfer, on or ...