The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DENYING DEFENDANTS' MOTION TO DISMISS ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF Nos. 19, 24)
Plaintiff Don Valencia is a state prisoner proceeding pro se and in forma pauperis in a civil rights action filed September 21, 2010 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) The parties have consented to Magistrate Judge jurisdiction for all matters and proceedings. (Consent to Magistrate, ECF Nos. 5, 29, 30.)
This claim arose during Plaintiff's incarceration at Sierra Conservation Camp at Jamestown, California ("SCC") while in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff alleges that, Defendants, SCC corrections staff members, violated his Eighth Amendment rights by failing to protect him during an August 23, 2008 attack in the yard by another inmate who severely injured Plaintiff. The action is proceeding on Plaintiff's Second Amended Complaint against Defendants Harris, Fell, Riggs, Webb, Hittle, Anderson, Dean, and Scott. (Order Finding Cogizable Claims, ECF No. 15.)
On September 21, 2012, Defendants Anderson, Dean, Fell, Harris, Hittle, Riggs, and Webb filed a motion to dismiss the action pursuant to Fed. R. Civ. P. 12(b), on grounds Plaintiff failed to timely exhaust his administrative remedies before filing suit. (Mot. to Dismiss., ECF No. 19.) Therein Defendants notified Plaintiff of his rights, obligations and methods for opposing the motion to dismiss pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). Plaintiff filed opposition to the motion to dismiss on October 15, 2012. (Opp'n to Mot., ECF No. 22.) On October 23, 2012, Defendants' filed a reply to the opposition. (Reply to Opp'n, ECF No. 23.) Defendant Scott joined in the instant motion to dismiss and reply in support, on November 8, 2012.*fn1 (Joinder, ECF No. 24.) Plaintiff filed a purported supplement to his opposition on November 29, 2012. (Supp. to Opp'n, ECF No. 26.)*fn2 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, 90-91 (2006).
The 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). 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).*fn3
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 burden of proof for the affirmative defense of failure to exhaust administrative remedies in a suit governed by the PLRA lies with defendant. Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007).
A. Defendants' Moving Argument
Plaintiff was required to file a prison appeal within fifteen working days of the August 23, 2008 incident. Cal. Code Regs. tit. 15 §§ 3084.2(a), 3084.2(a)(1), 3084.6(c).*fn4 (Baldwin Decl. in Supp. at ¶ 8; Lozano Decl. in Supp. at ¶ 8.) Plaintiff submitted one appeal related to that incident, Log. No. SCC-09-00023 ("Administrative Appeal"). It was not filed until December 27, 2008. (Mem. of P. & A. In Supp. at 5:15; Baldwin Decl. in Supp. at ¶¶ 10-11; Lozano Decl. in Supp. at ¶ 10-11.) Plaintiff's Administrative Appeal is untimely and will not support PLRA exhaustion. (Mem. of P. & A. in Supp. at 5:15-21.) CDCR's acceptance and processing of Plaintiff's untimely Administrative Appeal through the third level is not a waiver of the defense of untimely exhaustion. (Mem. of P. & A. in Supp. at 5:22-23.)
B. Plaintiff's Opposition Argument
Plaintiff argues, successively, in opposition:
He "filed his administrative complaints as soon as [he] was able". (Opp'n to Mot. at 2:10.) He was delayed in doing so because he was placed in AdSeg with a head injury several days after the incident and housed there until he was released to the general population on October 16, 2008. (Opp'n to Mot. at 3, 20-25.) He then requested SCC staff provide him with "the crime/incident reports" so he could "file a complaint." (Id. at 4:1-5.) He received nothing because "staff kept stone walling the issue". (Id.)
His Administrative Appeal was processed as a "staff complaint", (id. at 4:13-19), and as such was timely if filed within one year of the incident.*fn5 The fifteen day deadline relied ...