FINDINGS AND RECOMMENDATION REGARDING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES [ECF No. 27]
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Jorge Alberto Ornelas is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
This action is proceeding against Defendant Black for failure to protect in violation of the Eighth Amendment and against Defendants Deathriage and King for excessive force in violation of the Eighth Amendment.
Now pending before the Court is Defendant's motion to dismiss for failure to exhaust the administrative remedies, filed October 23, 2013. Plaintiff did not file an opposition. For the reasons discussed below, the undersigned will recommend that Defendants' motion be granted.
A. Exhaustion of Administrative Remedies
1. Legal Standard
Pursuant to the Prison Litigation Reform Act of 1996, "[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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock , 549 U.S. 199, 211 (2007); McKinney v. Carey , 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner , 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle , 435 U.S. 516, 532 (2002).
The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under which Defendant has the burden of raising and proving the absence of exhaustion. Jones , 549 U.S. at 216; Wyatt v. Terhune , 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust is subject to an unenumerated Rule 12(b) motion, and in resolving the motion, the Court may look beyond the pleadings and decide disputed issues of fact. Stratton, 697 F.3d at 1008; Morton v. Hall , 599 F.3d 942, 945 (9th Cir. 2010); Wyatt , 315 F.3d at 1119-20. If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice. Jones , 549 U.S. at 223-24; Lira v. Herrera , 427 F.3d 1164, 1175-76 (9th Cir. 2005).
2. California Department of Corrections and Rehabilitation Inmate Appeals Process
The California Department of Corrections and Rehabilitation has an administrative grievance system for prisoners to appeal any departmental decision, action, condition, or policy having an adverse effect on prisoners' welfare. Cal. Code Regs. tit. 15, § 3084.1. Prior to 2011, the process was initiated by submitting a CDC Form 602 describing the problem and the action requested, tit. 15, § 3084.2(a), and appeal had to be submitted within fifteen working days of the event being appealed or of the receipt of the unacceptable lower level decision, tit. 15, § 3084.6(c). Up to four levels of appeal may be involved, including the informal level, first formal level, second formal level, and third formal level, also known as the Director's Level. Tit. 15, § 3084.5. In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo , 548 U.S. 81, 85-86 (2006); McKinney , 311 F.3d at 1199-1201. On January 28, 2011, the inmate appeals process was modified and limited to three level of review with provisions allowing the first level to be bypassed under specific circumstances. Cal. Code Regs. tit. 15, § 3084.7.
B. Defendants' Motion to Dismiss For Failure to Exhaust
In their motion, Defendants assert that Plaintiff did not exhaust his administrative remedies as to the August 15, 2009, incident. In support, they attach the declarations of L. Maughmer, Appeals Coordinator for the Institutional Appeals Office for non-health care appeals at ...