The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED (Doc. 22.) OBJECTIONS, IF ANY, DUE IN THIRTY (30) DAYS
Jaques Fearence ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on May 1, 2008. (Doc. 1.) This case now proceeds on Plaintiff's First Amended Complaint, filed on March 1, 2010, against defendants Sergeant J. Busby, Correctional Officer ("C/O") T. C. Davis, C/O Duffy, and Lieutenant S. Hopkins (collectively "Defendants") for use of excessive force in violation of the Eighth Amendment. (Doc. 10.) On December 16, 2011, Defendants filed a motion to dismiss under Rules 12(b) and 12(b)(6), on the grounds that Plaintiff failed to exhaust administrative remedies for the claims against Defendants before filing suit, and failed to state an Eighth Amendment excessive force claim against defendants Davis and Duffy. (Doc. 22.) On February 15, 2012, Plaintiff filed an opposition to the motion.*fn1 (Doc. 25.) On February 22, 2012, Defendants filed a reply to Plaintiff's opposition. (Doc. 26.) Defendants' motion to dismiss is now before the Court.
II. PLAINTIFF'S ALLEGATIONS
Plaintiff is a state prisoner presently incarcerated at Pelican Bay State Prison in Crescent City, California. The events at issue in this action allegedly occurred at the California Correctional Institution ("CCI") in Tehachapi, California, when Plaintiff was incarcerated there. Plaintiff alleges as follows in the First Amended Complaint.
On August 11, 2005, Plaintiff was removed from his cell with restraints on his ankles and hands, and placed in a holding cage. Defendants Sergeant J. Busby, C/O T. C. Davis, C/O Duffy, and Lieutenant S. Hopkins then subjected him to verbal abuse. Defendant Hopkins reached into the cage and assaulted Plaintiff aggressively. Defendants put on gas masks and agreed to pepper spray Plaintiff, even though Plaintiff did not pose any threat to staff or anyone. Defendant Busby sprayed a whole can of O.C. pepper spray. Defendants Hopkins, Busby, Davis, and Duffy were all involved in the incident. Plaintiff requests unspecified relief.
III. MOTION TO DISMISS FOR FAILURE TO EXHAUST
A. Statutory Exhaustion Requirement
Section 1997e(a) of the Prison Litigation Reform Act of 1995 ("PLRA") provides that "[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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and theexhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).
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 216; 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 at 1119 (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 administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt 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 Court takes judicial notice of the fact that the California Department of Corrections and Rehabilitation ("CDCR") has an administrative grievance system for prisoner complaints. Cal.Code Regs., tit. 15 § 3084.1 (2005). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). In 2005, prisoners were required to submit appeals within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c) (2005). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. at § 3084.5. In order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85 (2006); McKinney, 311 F.3d. at 1199-1201.
Defendants argue that this action should be dismissed because Plaintiff failed to exhaust the CDCR's administrative appeals process regarding his claims against Defendants. Defendants acknowledge that Plaintiff submitted a prison grievance, log number CCI-05-02644, in September 2005, regarding Defendants' alleged actions of August 11, 2005. (First Amd. Cmp., Doc. 10, Exh. 1.) Defendants also acknowledge that on September 27, 2005, the grievance was denied at the second level of review. (Id.; Declaration of Sampson, Doc. 22-3 ¶¶3-4). However, Defendants argue that Plaintiff failed to complete the grievance process because he did not submit the appeal to the third ...