DAVID G. CAMPBELL, District Judge.
Plaintiff Dana Pearson brought this civil rights action under 42 U.S.C. § 1983 against Maricopa County Sheriff Joseph Arpaio and the Maricopa County Board of Supervisors (Doc. 1). Defendants move to dismiss on the ground that Plaintiff failed to exhaust his administrative remedies (Doc. 14). The Court will grant the motion and dismiss this action without prejudice.
Plaintiff's claims stem from his incarceration in Maricopa County Jails. Plaintiff presents three claims and seeks injunctive, compensatory, and punitive relief. In his first claim, Plaintiff asserts that the intake system is overcrowded, which results in physical combat between pretrial detainees and uninhabitable conditions of confinement. In his second claim, Plaintiff contends that inmates receive spoiled and insufficient nutrition. In his last claim, Plaintiff alleges that Defendants fail to provide the minimum standards of constitutional shelter in the Maricopa County Jails because the cells are rusty, moldy, lack proper ventilation, filthy, and contain rodents and insects. The Court ordered Defendants to answer the Complaint (Doc. 7) and they move to dismiss all three of Plaintiff's claims (Doc. 14).
II. Exhaustion Governing Standard
The Prison Litigation Reform Act (PLRA) provides that a prisoner may not bring a lawsuit with respect to prison conditions under § 1983 unless all available administrative remedies have been exhausted. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill , 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff , 422 F.3d 926, 934-35 (9th Cir. 2005). He must complete the administrative review process in accordance with the applicable rules. See Woodford v. Ngo , 548 U.S. 81, 92 (2006). Exhaustion is required for all suits about prison life, Porter v. Nussle , 534 U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative process, Booth v. Churner , 532 U.S. 731, 741 (2001).
Exhaustion is an affirmative defense. Jones v. Bock , 549 U.S. 199, 216 (2007). Defendant bears the burden of raising and proving the absence of exhaustion. Wyatt , 315 F.3d at 1119. Because exhaustion is a matter of abatement in an unenumerated Rule 12(b) motion, a court may look beyond the pleadings to decide disputed issues of fact. Id. at 1119-20. Further, a court has broad discretion as to the method to be used in resolving the factual dispute. Ritza v. Int'l Longshoremen's & Warehousemen's Union , 837 F.2d 365, 369 (9th Cir. 1988) (quotation omitted).
As articulated above, Defendants have the burden of proving lack of exhaustion and therefore must demonstrate that there were remedies available to Plaintiff. See Wyatt , 315 F.3d at 1119; Brown , 422 F.3d at 936-37. It is undisputed that a grievance procedure existed at the jail (Doc 15, Ex. 1; Doc. 19 at 2) and that Plaintiff did not file any grievances during his incarceration (Doc. 15, Hernandez Decl. ¶ 8).
Plaintiff's primary argument opposing Defendants' motion is that the grievance procedure does not provide the type of relief Plaintiff is seeking and, as a result, forcing him to exhaust "futile formalities" serves no purpose. But futility is not an exception to the exhaustion requirement; Porter squarely held that exhaustion is required for all suits about prison life regardless of the ultimate remedy sought or the type of relief offered through the administrative process. 534 U.S. at 523. This holding ensures that inmates provide prison officials time and opportunity to address complaints internally, which filters out frivolous claims and develops an administrative record. McKinney v. Carey , 311 F.3d 1198, 1200-01 (9th Cir. 2002). As a result, Plaintiff's belief that utilizing the grievance procedure would have been futile does not excuse his failure to exhaust.
It is true that if Plaintiff was unable to file grievance forms or if he was reliably informed that administrative remedies were not available, exhaustion is not required. Marella v. Terhune , 568 F.3d 1024, 1027 (9th Cir. 2009); Brown v. Valoff , 422 F.3d 926, 936 (9th Cir. 2005). But despite Plaintiff's reference to jail policies being "non-grievable, " he does not recount a single specific instance where he was denied a grievance form or was prevented from utilizing the grievance procedure for any of his claims. Plaintiff's argument is also contradicted by Defendants' evidence that grievances concerning conditions of confinement are expressly permitted (Doc. 15, Hernandez Decl. ¶ 5).
Finally, Defendants disprove Plaintiff's claim that he never received a copy of the jail's grievance procedure by providing a copy of Plaintiff's signature demonstrating receipt of the MCSO Rules and Regulations for Inmates, which includes the jail's grievance procedure (Doc. 21, Ex. 1).
In short, none of Plaintiff's arguments presents a valid excuse for failure to exhaust, and his concession to nonexhaustion (Doc. 1 at 3, 4, 5) is dispositive of the issue. Holcomb v. Fleeman , 2007 WL 3231588, at *2 (E.D. Cal. 2007) (inmate's concession that he did not obtain a Director's level decision until after the lawsuit was filed "is fatal to his action") (citing Woodford, 126 S.Ct. at 2383; McKinney , 311 F.3d at 1199-1201). Plaintiff simply failed to utilize ...