Opinion
No. CV 05-1038-PHX-JAT.
November 29, 2005
ORDER
Pending before the Court is the Defendant's Motion to Dismiss (Doc. # 13). The Court now rules on the motion.
I. Background
Plaintiff, Abraham Cervantez files this action pro se pursuant to 42 U.S.C. § 1983. The Plaintiff's Complaint alleges that he was subjected to improper diet, overcrowding, and unsanitary conditions when he was detained at a Maricopa County jail facility. The Defendant moves to dismiss the Plaintiff's Complaint on the basis that the Plaintiff failed to exhaust his administrative remedies prior to filing this action.
In support of his Motion to Dismiss, the Defendant has provided the Court with: (1) copies of the inmate grievance procedures and rules and regulations for inmates that were provided to the Plaintiff; and (2) an affidavit from a relevant employee avowing that Plaintiff did not file any grievances. The Defendant also points out that the Plaintiff's Complaint concedes that administrative procedures were available but that the Plaintiff did not exhaust them.
The Plaintiff failed to respond to the Defendant's Motion to Dismiss.
II. Legal Standard and Analysis
A motion to dismiss for a failure to exhaust non-judicial remedies is a "non-enumerated" Rule 12(b) motion. Ritza v. Int'l Longshoremen's and Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988) (per curiam). 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 v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). If the court concludes that a prisoner failed to fully exhaust the non-judicial remedies, the proper remedy is dismissal without prejudice. Id. at 1120.
The Prison Litigation Reform Act (" PLRA") states 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 available are exhausted." 42 U.S.C. § 1997(e)(a). The exhaustion requirement creates an affirmative defense, meaning the defendants have the burden of raising and proving non-exhaustion of the claims. Wyatt, 315 F.3d at 1113. The exhaustion requirement applies to all inmate suits concerning prison life. Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992 (2002). The inmate must complete the administrative procedure, regardless of the relief available. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001). Furthermore, a prisoner's concession to non-exhaustion of the administrative process constitutes valid grounds for a dismissal, as long as no exception to exhaustion applies. Wyatt, 315 F.3d at 1120.
In its August 16, 2005, Order, this Court warned the Plaintiff that his failure to respond to the Defendant's Motion to Dismiss " could be deemed consent to the granting of that Motion without further notice." Further, this Court instructed Plaintiff that "if Defendant produces evidence demonstrating that you failed to exhaust your administrative remedies, your complaint will be dismissed without prejudice unless you provide copies of your grievances and grievances appeals or other admissible evidence sufficient to show that you did exhaust all available administrative remedies."
The Plaintiff, by his complete failure to respond to the motion, has also failed to provide any evidence that he grieved any of the counts alleged in his complaint or that the administrative procedures were not available to him. Additionally, the Plaintiff's concession in his Complaint to non-exhaustion of the administrative process constitutes valid grounds for dismissal. Wyatt, 315 F.3d at 1120. Therefore, dismissal without prejudice is appropriate.
III. CONCLUSION
Based on the above ruling,
IT IS ORDERED GRANTING the Defendants' Motion to Dismiss (doc. # 13) and dismissing this action.