The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION DENYING WITHOUT PREJUDICE DEFENDANTS' MOTION TO DISMISS ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF No. 37) FOURTEEN (14) DAY DEADLINE
Plaintiff Richard Alan Lawson is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed on June 8, 2009 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (Consent to Jurisdiction, ECF No. 5.) Defendants Embrey, Laird and Sawaske declined Magistrate Judge jurisdiction. (Decline of Jurisdiction, ECF No. 32.)
This matter arose on October 2, 2008, during Plaintiff's incarceration as a pre-trial detainee at the Kern County Central Receiving Facility ("Downtown Jail") while in the custody of the Kern County Sheriff's Department ("Department"). Plaintiff alleges that, while in restraints and awaiting transfer from the Downtown Jail to the Department's Lerdo Detention Facility ("Lerdo"), Defendant Laird pushed him from behind, propelling him face-first onto the concrete floor, knocking him unconscious and causing face and mouth injuries including an embedded denture in the roof of his mouth, bleeding, and airway complications. (Second Am. Compl., ECF No. 21 at 5-8.)
The matter proceeds on Plaintiff's Second Amended Complaint for inadequate medical care under the Eighth Amendment against Department Defendants Laird, Chang, Sawaske, Embrey, and Clemente, and for excessive force under the Eighth Amendment against Defendant Laird. (Order on Cognizable Claims, ECF No. 22.) Defendants Laird, Sawaske and Embrey filed an Answer on August 1, 2012. (Answer, ECF No. 29). The Court filed its Discovery and Scheduling Order on August 2, 2012, providing a dispositive motion deadline of June 13, 2013. (Discov. & Sched. Order, ECF No. 30.)
On September 6, 2012, Defendants Laird, Sawaske and Embrey 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). (Mot. Dismiss, ECF No. 37.) On October 4, 2012, pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), the Court notified Plaintiff of his rights, obligations and methods for opposing the Motion to Dismiss and gave him an opportunity to file opposition by not later than October 29, 2012. (Order, ECF No. 45.) Plaintiff filed his opposition to the Motion to Dismiss on October 15, 2012.*fn1 (Opp'n to Mot. Dismiss., ECF No. 47.) Defendants Laird, Sawaske and Embrey filed their reply on October 22, 2012. (Reply to Opp'n, ECF No. 48.) The 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). "[P]roper exhaustion of administrative remedies is necessary," and "demands compliance with an agency's deadlines and other critical procedural rules . . . ." Woodford v. Ngo, 548 U.S. 81, 83--84, 90 (2006).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which Defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 215; Wyatt, 315 F.3d at 1119. 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, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. 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. Id.
The Department provides inmate grievance procedures ("Grievance Procedures") at all its facilities, pursuant to Title 15 of the California Code of Regulations § 1073.*fn2 (Decl. Brandon in Supp. at ¶ 4.) The Department has adopted Detention Bureau Policies and Procedures, section I-200, entitled "Inmate Grievances". (Mem. of P. & A. in Supp. at 4:3-4; Decl. of Brandon in Supp. at ¶ 4.) The Grievance Procedures allow a process for inmates to grieve, the Department to respond, and for inmate's appeal of the response. (Id. at 4:9-11; Decl. Brandon in Supp. at ¶ 5.) Inmates are advised of the Grievance Procedures by facility television and through informational pamphlets. (Mem. of P. & A. in Supp. at 4:14-16; Decl. of Barnes in Supp. at ¶¶ 3-4.)
A. Defendants' Moving Argument
Defendants argue the Grievance Procedures provide the grievance process for inmates in custody of the Department. (Decl. Brandon in Supp. at ¶¶ 4-5.) "[Plaintiff] was made aware of the Grievance Procedures to the extent that he bothered to watch the daily video or read the distributed pamphlet." (Mem. of P. & A. in Supp. at 7:4-5; Decl. Barnes in Supp. at ¶¶ 3-4.)
Plaintiff did not file a grievance relating to the October 2, 2008 incident during the September 30-October 2, 2008 period he was confined at the Downtown Jail, or the October 3, 2008-January 27, 2009 period he remained in custody of the Department at Lerdo. (Decl. Trujillo in Supp. at ¶ 3; Decl. ...