(PC) Jones v. Jenkins, 2:09-cv-01373

Jones, a state prisoner proceeding pro se, filed a 42 U.S.C. § 1983 excessive force claim against CSP-SAC guards.
The complaint was filed May 18, 2009, alleging events on September 20, 2008.
Caron and Colvin moved to dismiss for failure to exhaust administrative remedies on August 9, 2012; Jenkins joined on October 5, 2012; plaintiff did not oppose.
Plaintiff’s administrative exhaustion requirements followed California’s multi-step process: informal resolution, formal CDC 602 appeal, second level, and third level to the Director.
Defendants submitted declarations showing no inmate appeals by Jones after September 20, 2008 that produced a first or second level decision before May 18, 2009; no third-level decision before May 18, 2009.
The court found non-exhaustion met and, alternatively, deemed the motion meritorious due to plaintiff’s failure to oppose.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Jones exhausted administrative remedies.	Jones argues exhaustion occurred.	Defendants assert no proper exhaustion prior to May 18, 2009.	Non-exhaustion shown; dismissal appropriate.
Whether dismissal is proper on non-exhaustion grounds.	N/A	Non-exhaustion warrants dismissal under PLRA.	Granted on alternative basis; merits of motion established.
Whether the motion to dismiss should be granted for failure to exhaust under Rule 12(b).	N/A	Motion to dismiss is appropriate due to lack of exhaustion.	Yes; motion granted.

Wyatt v. Terhune, 315 F.3d 1120 (9th Cir. 2003) (Wyatt notice requirement when no opposition to dismissal is filed)
Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) (Wyatt notice and exhaustion standards applied to non-enumerated 12(b) motions)
Woodford v. Ngo, 548 U.S. 81 (S. Ct. 2006) (exhaustion requirement procedural default and completion)
Barry v. Ratelle, 985 F. Supp. 1235 (S.D. Cal. 1997) (multi-step California exhaustion procedure)
McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) (no action unless administrative remedies exhausted)