The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANTS' MOTION TO DISMISS (ECF No. 13)
OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations on Motion to Dismiss
Plaintiff Anthony Marquez is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint, filed October 20, 2010, against Defendants D. Horban and I Quintero for deliberate indifference in violation of the Eighth Amendment. (ECF No. 9.) On April 6, 2012, Defendant Horban filed a motion to dismiss for failure to exhaust administrative remedies. (ECF No. 13.) 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 and granted thirty days in which to file an opposition on July 13, 2012. Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003); (ECF Nos. 15, 16.) On August 16, 2012, Defendant Quintero joined in the motion to dismiss. (ECF No. 19.) Plaintiff received a thirty day extension of time to file his opposition on September 18, 2012. (ECF No. 21.) More than thirty days have passed and Plaintiff has failed to file an opposition. The matter is deemed submitted.
II. Allegations in Complaint
On September 11, 2009, Plaintiff was moved and assigned an upper bunk. Plaintiff alleges that he informed Defendants Quintero and Horban that he had a medical chrono for a lower bunk, lower tier assignment due to a seizure disorder. Defendants refused to honor the medical chrono. On September 12, 2009, Plaintiff had a seizure and fell from the top bunk and was in a coma due to his injuries. (Compl. 3,*fn1 ECF No. 1.)
III. Defendants' Motion to Dismiss
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.
Defendants argue that Plaintiff did not exhaust his administrative remedies because the only appeal he submitted regarding the incident alleged in the complaint was screened out as being untimely. (Memo. Points and Authorities in Support of Defendant's Motion to Dismiss 4, ECF No. 13-1.) In support of the motion, Defendants submit the declaration of M. Rocha, Appeals Coordinator at North Kern State Prison. Rocha states that the only appeal that Plaintiff submitted regarding this incident was filed on April 14, 2010, over seven months after the incident. The appeal was screened out at the second level of review and not assigned a log number because too much time had passed between the incident and when Plaintiff filed the appeal. (Rocha Dec. ¶ 6, ECF No. 13-2.) Defendants ...