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. 15) OBJECTIONS DUE WITHIN FOURTEEN DAYS
Plaintiff Abdullah Naim Hafiz ("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 March 25, 2011. (ECF No. 1.) On February 28, 2012, the Court issued an order dismissing that Complaint with leave to amend. (ECF No. 9.) Plaintiff filed a First Amended Complaint on March 21, 2012. (Am. Comp., ECF No. 10.) On June 29, 2012, the Court screened Plaintiff's Amended Complaint pursuant to 28 U.S.C. § 1915(A)(a), and found that Plaintiff stated a cognizable Eighth Amendment claim against Defendants Yates and Igbinosa for not ensuring measures to mitigate the known increased risk of contracting coccidioidomycosis, also known as "valley fever", at Pleasant Valley State Prison. (ECF No. 11.)
On September 21, 2012, Defendants Igbinosa and Yates filed a motion to dismiss on the grounds that Plaintiff had failed to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a) and for lying under penalty of perjury under Fed. R. Civ. P. 41(b). (Defs.' Mot., ECF No. 15.) Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), Defendants notified Plaintiff of his rights and the requirements for opposing the motion. (Id.) Plaintiff filed an opposition on October 15, 2012. (Pl.'s Opp'n, ECF No. 16.) Defendants filed a reply on November 11, 2012. (Defs.' Reply, ECF No. 17.)*fn1
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).*fn2 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 underlying events in Plaintiff's First Amended Complaint occurred at Pleasant Valley State Prison ("PVSP") where he has been housed since 2008. (Am. Compl. at 4.)
Plaintiff's allegations are as follows:
Plaintiff had several medical conditions prior his transfer to PVSP. (Am. Compl. at 4.) After his transfer he contracted coccidioidomycosis, i.e., "valley fever". (Id.) Defendants were aware that PVSP had a problem with valley fever and that inmates needed to be screened before being housed at PVSP to ensure that those with a high risk of contracting valley fever were not transferred there. (Id.) Defendants ...