The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, incarcerated at the California Substance Abuse Treatment Facility ("CSATF"), who proceeds without counsel and in forma pauperis in this civil rights action filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983. Pending is defendant's motion to dismiss plaintiff's complaint, on the ground that plaintiff failed to exhaust his administrative remedies before bringing this federal action,*fn1 and on the further ground that plaintiff's pendant state law claim is barred by the applicable statute of limitations. Plaintiff filed an opposition to defendant's motion, and defendant filed a reply. For the following reasons, the court recommends that defendant's motion to dismiss be granted.
The complaint (Dkt. No. 1) challenges conditions of plaintiff's confinement when he was incarcerated at Deuel Vocational Institution ("DVI"). Plaintiff alleges that on October 16, 2009, he and his cellmate were attacked by another inmate while being escorted to their cell, located in DVI's administrative segregation unit ("ad seg"). Plaintiff sustained a stab wound to his face, which required stitches. Plaintiff alleges that his attacker was able to open his own cell door from the inside. Plaintiff alleges that there had been prior assaults against inmates and staff by other DVI ad seg inmates who had also been able to open their cell doors from the inside. The complaint alleges that DVI staff were aware that the ad seg cell doors were defective, yet failed to repair or modify the doors to prevent harm to inmates and staff. The complaint names as defendants DVI, Correctional Sergeant B. Tisdale, and Does 1-10.
Pursuant to the initial screening of the complaint, under 28 U.S.C. § 1915A, this court found that DVI was immune from suit under the Eleventh Amendment, but that the complaint stated a potentially cognizable Eighth Amendment claim against defendant Tisdale for deliberate indifference to unsafe conditions of confinement, as well as a pendent state law claim for intentional infliction of emotion distress. (See Dkt. No. 12.) Although the court granted plaintiff leave to file an amended complaint clarifying his Eighth Amendment failure to protect claim, plaintiff did not file an amended complaint. As a result, this action proceeds only against defendant Tisdale on the identified claims.
III. Eighth Amendment Claim
Defendant moves to dismiss plaintiff's Eighth Amendment claim on the ground that plaintiff failed to administratively exhaust the claim before commencing this lawsuit. Defendant contends that the only pertinent grievance plaintiff submitted concerning the October 16, 2009 incident was cancelled pursuant to the First Level Review, and not further pursued by plaintiff. Plaintiff responds that his administrative remedies were "effectively unavailable" because defendant Tisdale improperly cancelled the grievance. Plaintiff further asserts that he resubmitted the grievance but received it back unanswered.
A. Legal Standards for Administrative Exhaustion
The Prison Litigation Reform Act ("PLRA") provides 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 requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules, including deadlines. Woodford v. Ngo, 548 U.S. 81 (2006). Prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001).
The PLRA requires that administrative remedies be exhausted prior to filing suit. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). The exhaustion requirement is not jurisdictional, but an affirmative defense that may be raised by a defendant in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). See Jones v. Bock, 549 U.S. 199, 216 (2007) ("inmates are not required to specially plead or demonstrate exhaustion in their complaints"); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119.
However, the administrative exhaustion requirement may itself be waived in extraordinary circumstances where a prisoner's administrative remedies are "effectively unavailable." Nunez v. Duncan, 591 F.3d 1217, 1220-21, 1225-26 (9th Cir. 2010); accord Martinez v. Robinson, 2010 WL 3001381, *3 (N.D. Cal. 2010) (improperly told three times that his appeal was duplicative, plaintiff had no available remedy and was thus excused from further exhaustion efforts); see also Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) ("improper screening of an inmate's administrative grievances renders administrative remedies 'effectively unavailable' such that exhaustion is not required under the PLRA"). However, unavailability must be adequately demonstrated. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005) (the obligation to exhaust persists as long as some administrative remedy is available); see also Newman v. McLean, 2009 WL 688859, *6 (N.D. Cal. 2009) ("[p]laintiff did not pursue all the remedies that were available since he could have appealed the alleged improper screening out of the inmate appeal as being duplicative but failed to do so"); Smiley v. Martinez, 2010 WL 309459, *3 (N.D. Cal. 2010) (plaintiff did not timely challenge the screening out of his appeals based on untimeliness and duplication).
"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119. When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) ("mixed" complaints may proceed on exhausted claims). Thus, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
Defendant has submitted evidence, with supporting declarations, demonstrating that, of the five administrative grievances plaintiff submitted between October 16, 2009 (when plaintiff was assaulted), and April 19, 2011 (when plaintiff commenced this action), only one grievance challenged the condition of the DVI ad seg cell doors and/or the events of October 16, 2009. (See Motion to Dismiss, Decl. of R. denDulk (DVI Appeals Coordinator), Dkt. No. 24-1 at 1-30, and Exh. A-F; see also Decl. of J. Lozano (CDCR Chief, Office of Appeals), Dkt. No. 24-2 at 1-2; Decl. of ...