The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATION GRANTING MOTION TO DISMISS WITHOUT PREJUDICE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (Doc. 23)
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendants' motion to dismiss filed on September 7, 2012. (Doc. 23) For the reasons set forth below, the Court recommends the motion to dismiss be GRANTED and the matter be DISMISSED WITHOUT PREJUDICE.
I. Plaintiff has failed to exhaust his administrative remedies under the PLRA
The Prison Litigation Reform Act requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). Exhaustion is a prerequisite to the inmate filing a lawsuit. See Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 739 (2001). The PLRA requires the inmate to exhaust every level in the administrative process. See McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002).
The goals of the PLRA's exhaustion requirement are to: (1) "eliminate unwarranted federal 2 court interference with the administration of prisons;" (2) "afford corrections officials time and 3 opportunity to address complaints internally before allowing the initiation of a federal case;" and, (3) 4 "reduce the quantity and improve the quality of prisoner suits." Woodford v. Ngo, 548 U.S. 81, 84-85 5 (2006). Therefore, "the PLRA exhaustion requirement requires full and proper exhaustion." Id. at 92-6 94. The Supreme Court held that "the PLRA's exhaustion requirement applies to all inmate suits 7 about prison life, whether they involve general circumstances or particular episodes, and whether they 8 allege excessive force or some other wrong." Porter, 534 U.S. at 532. Further, the exhaustion of 9 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, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).
The grievance and appeal procedure for inmates in the custody of the California Department of Corrections and Rehabilitation, is a four-step process. Vaden v. Summerhill, 449 F.3d 1047, 1048-1049 (9th Cir. 2006); Cal. Code Regs. tit. 15, §§ 3084.1-3084.6. In 2009, generally, the inmate was required to file an informal inmate appeal within 15 days of the incident. Brown v. Valoff, 422 F.3d 926, 929-930 (9th Cir. Cal. 2005). If denied at this First Level, the inmate can appeal to the Second Level which, generally, is to the warden or the warden's designee. Id. The Third Level Appeal is conducted by the CDCR's Director or designee. Id. Only a final decision on the merits from the Third Level Appeal satisfies the exhaustion requirement under the PLRA. Cal. Code Regs., tit 15, § 3084.7(d)(3) (2011); Brodheim v. Cry, 584 F.3d 1262, 1265 (9th Cir. 2009).
Importantly, "[t]he requirements of the prison's grievance process, not the PLRA, define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007. "[I]f prison regulations do not prescribe any particular content for inmate grievances, 'a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought. As in a notice pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming.'" Johnson v. Testman, 380 F.3d 691, 697 (2nd Cir.2004) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir.2002)). However, the grievance must "provide enough information . . . to allow prison officials to take appropriate responsive measures. 2 [citation]" Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009). 3
The exhaustion requirement of § 1997e(a) does not impose a pleading requirement, but rather 4 is an affirmative defense under which defendants have the burden of proving the plaintiff failed to 5 exhaust the available administrative remedies before filing a complaint in the District Court. Jones, 6 supra, 549 U.S. at 216. A motion raising a prisoner's failure to exhaust the administrative remedies is 7 properly asserted by way of an unenumerated motion under Fed.R.Civ.P 12(b). Wyatt v. Terhune, 315 8 F.3d 1108, 1119 (9th Cir.2003); Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 9 365, 368 (9th Cir.1998) (per curium). In determining whether a case should be dismissed for failure to exhaust the 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.
Plaintiff's complaint stems from an incident on August 3, 2009, in which he was attacked by his cellmate, Vargas. (Doc. 15 at 3-4) Plaintiff claims that before the attack, he reported to the "inmate clerk responsible for processing bed and cell moves," that he needed to move because he was not compatible with his cellmate. Id. at 4. However, he was not moved. In addition, Plaintiff alleges that during the incident, he moved toward the front of the cell, where a window is located, to alert staff of the attack. (Doc. 15 at 4) He claims Defendant Aguilera saw the attack but failed to intervene. Id.
On August 16, 2009, Plaintiff filed a 602 grievance complaining that, due to his medical condition, he should not have been placed with a cellmate. (Doc. 1 at 7) Plaintiff asserted that if he was placed in a single cell, he would not have been attacked on August 3, 2009. Id. Plaintiff asked that his grievance be granted and that he be provided a single cell until he recovered from his medical condition. Id.
The grievance was denied at the first level on August 30, 2009. Id. Plaintiff appealed to the second level on September 24, 2009, which was denied also. (Doc. 1 at 7; Doc. 23-3 at 2; Doc. 23-4 at 2) Plaintiff did not appeal to the third level. Id.
On the same day as the attack, Plaintiff was issued a rules violation report for assaulting his 2 cellmate with a weapon. (Doc. 23-3 at 12) In the report, Officer Pease, indicated that he was alerted 3 that there was a fight in Plaintiff's cell. Id. When he arrived at the cell, Pease observed that both 4 inmates had injuries that seemed consistent with a fight. Id. When the inmates were ordered to exit 5 the cell, Vargas reported that Plaintiff had stabbed him in the ear and that because Plaintiff stabbed 6 him he "battered" Plaintiff in return. (Doc. 23-3 at 13) ...