The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff's first amended complaint against defendants T. Young and T. Bartos. ECF 7. In his first amended complaint, plaintiff alleges that defendants assaulted him on February 18, 2010. Id. As a result, plaintiff contends that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. Id. Pending before the court is defendants' motion to dismiss these claims based on a failure to first exhaust administrative remedies. ECF 30. After careful review of the record, the undersigned concludes that defendants' motion to dismiss should be granted.
II. Plaintiff's First Amended Complaint
Plaintiff's claim arises from an incident that took place on February 18, 2010, during which plaintiff claims he was assaulted by defendants. ECF 7 at 2. In his complaint, plaintiff explains that he went to a clinic to obtain prescribed medication he was allegedly denied. Id. Plaintiff claims that while waiting outside the clinic gate he made a comment that agitated defendant Young causing him to order plaintiff to face a building wall. Id. Plaintiff alleges that while he complied with defendant Young's orders, defendant Young "approached plaintiff from behind," grabbed the back of his head and slammed his face into the wall causing his nose to bleed. Id. Plaintiff asserts that defendant Young continued to assault him by slamming his body into the ground. Id. Plaintiff further asserts that defendant Bartos then arrived and "started kicking plaintiff in the [head]" and face. Id. at 3. Plaintiff claims he "suffered [abrasions], bruise[s], [and] bleeding to [the] right eye and [n]ose." Id.
III. Motion to Dismiss - Failure to Exhaust
In their motion to dismiss, defendants contend that plaintiff failed to exhaust his administrative remedies, did not sufficiently place prison officials on notice of the alleged excessive use of force, and did not timely file his administrative appeal. ECF 30-1. Plaintiff was informed of the requirements for opposing a motion to dismiss for failure to exhaust administrative remedies on February 15, 2013. ECF 30. Plaintiff filed an opposition (ECF 31), and defendants filed a reply (ECF 33).
A. Legal Standard Regarding Exhaustion
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[n]o 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). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734. The fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records). The Supreme Court has cautioned courts against reading futility or other exceptions into the PLRA exhaustion requirement. See Booth, 532 U.S. at 741 n.6.
A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Id., at 936-37.
As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings."
Id. at 90-91. Thus, compliance with grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84. When the rules of the prison or jail do not dictate the requisite level of detail for proper review, a prisoner's complaint "suffices if it alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). This requirement is because the primary purpose of a prison's administrative review system is to "notify the prison of a problem and to facilitate its resolution." Griffin, 557 F.3d at 1120.
Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court may look beyond the pleadings to ...