The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS' MOTION TO DISMISS (ECF No. 18) OBJECTIONS DUE WITHIN FOURTEEN DAYS
Plaintiff Quillie L. Harvey ("Plaintiff") is a state prisoner proceeding in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff initiated this action with a Complaint filed December 16, 2010. (Compl., ECF No. 1.) On December 22, 2011 the Court screened that Complaint and, finding that it stated a cognizable Eighth Amendment excessive force claim, directed Plaintiff to notify the Court whether he wished to proceed on that claim alone or file an amended complaint. (ECF No. 11.) Plaintiff informed the Court he was willing to proceed on his cognizable claim, and the Court dismissed Plaintiff's Fourteenth Amendment claim and certain Defendants. (ECF Nos. 12 & 13.) Thus, Plaintiff proceeds against Defendants Ayala and Martinez. on his excessive force claim under the Eighth Amendment to the United States Constitution
On June 13, 2012, Defendants Ayala and Martinez filed a motion to dismiss on two grounds: 1) Plaintiff failed to exhaust his administrative remedies prior to commencing this action; and, 2) Plaintiff is contesting a rule violation conviction that lengthened his sentence so his remedy must be pursued under 28 U.S.C. § 2254. (Defs.' Mot., ECF No. 18.) Plaintiff filed an opposition on July 2, 2012. (Pl.'s Opp'n, ECF No. 29.) Defendants filed a reply. (Defs.' Reply, ECF No. 23.) 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. 24.) In response, Plaintiff filed a supplemental opposition. (Pl.'s Supplemental Opp'n, ECF No. 30.) Defendants filed a supplemental reply. (Defs.' Supplemental Reply, ECF No. 35.)
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 Complaint are summarized as follows: Plaintiff was transferred from one prison to another in August 2010 and during the transfer process, he was housed at Wasco State Prison for a night. (Compl. at 5.) Plaintiff was housed with an incompatible roommate and informed Defendant Ayala of the situation. (Id. at 5-6.) Defendant Ayala threatened Plaintiff with physical harm and pepper spray if Plaintiff did not go to his assigned cell. (Id. at 6.) Plaintiff returned to his assigned cell but Defendant Ayala still placed the pepper spray against Plaintiff's face and lunged at him. (Id.) Plaintiff asked Defendant Martinez for help. (Id.) Defendant Martinez instead used pepper spray on Plaintiff and Defendant Ayala hit Plaintiff on the back. (Id.) Plaintiff was dragged out of the building, placed in handcuffs, and taken to a cage. (Id.)
Plaintiff filed staff complaints on September 6 and 22, 2010. (Compl. at 8.) Plaintiff was issued a Rules Violation ...