The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (ECF No. 25)
Plaintiff Anthony Miles ("Plaintiff") is a state prisoner proceeding in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The parties have consented to Magistrate Judge jurisdiction. (ECF Nos. 7 & 40.)
Plaintiff began this action by filing a Complaint on November 5, 2010. (ECF No. 1.) Prior to the Court screening Plaintiff's Complaint, Plaintiff filed a First Amended Complaint. (ECF No. 8.) On September 1, 2011, the Court issued an order dismissing Plaintiff's First Amended Complaint with leave to amend. (ECF No. 9.) Plaintiff filed a Second Amended Complaint on October 14, 2011. (Am. Comp., ECF No. 12.) On December 29, 2011, the Court screened Plaintiff's Second Amended Complaint pursuant to 28 U.S.C. § 1915(A)(a), and found that it stated a cognizable Eighth Amendment conditions of confinement claim against Defendants Cates, Yates, and Igbinosa for failing to ensure measures were taken to mitigate the known increased risk of contracting Valley Fever at Pleasant Valley State On June 4, 2012, Defendants Cates, Yates, and Igbinosa 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. 25.) Plaintiff filed an opposition on June 26, 2012. (Pl.'s Opp'n, ECF No. 29.) 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 and the requirements for opposing the motion and gave him an opportunity to file a supplemental opposition. (ECF No. 35.) In response, Plaintiff informed the Court that he did not wish to supplement his opposition. (ECF No. 36.) Defendants filed a reply on August 15, 2012. (Defs.' Reply, ECF No. 38.)
Defendants' motion to dismiss is now ready for ruling pursuant to Local Rule 230(l).
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.
The essential allegations of Plaintiff's Second Amended Complaint are summarized as follows:
Plaintiff's Second Amended Complaint relates to the presence of Valley Fever at Pleasant Valley State Prison ("PVSP") where Plaintiff has been housed since 2009. (Am. Compl. at 4.) Valley Fever is a fungal disease that lives in the soil and can be released into the air and inhaled, causing infection, when the soil is disturbed. (Id.) The disease is treatable, but can be deadly, and PVSP has a high rate of infection. (Id. at 7.) There are steps that can be taken to prevent infection, and these were publicized to PVSP officials via a memorandum issued by Dwight Winslow, the California Department of Corrections and Rehabilitation's ("CDCR's") medical director. (Id. at 9.) PVSP failed to properly protect against the risk of Valley Fever infection. (Id. at 10.) Defendants Cate, Yates, and Igbinosa were aware of the Winslow memorandum, witnessed the conditions at PVSP, but failed to take steps to mitigate the risk of Valley Fever infection. (Id. at 13.)
Defendant Igbinosa implemented a policy whereby only prisoners with serious medical conditions could receive a mask. (Am. Compl. at 14.) This policy contravened the Winslow memorandum, which ordered that every prisoner be provided with a mask upon request. (Id.) ...