REPORT AND RECOMMENDATION

RICARDO S. MARTINEZ, Magistrate Judge.

I. INTRODUCTION

Plaintiff Dwante Jackson, a former prisoner at the King County Correctional Facility ("KCCF"), is proceeding pro se and in forma pauperis in this 42 U.S.C. § 1983 civil rights action. The sole remaining defendant is Yuliya Hall, a Corrections Officer at the KCCF. (See Dkts. 8, 9.) Currently before the Court is defendant's motion for summary judgment. (Dkt. 16.) She argues that plaintiff failed to exhaust his available administrative remedies as required by the Prison Litigation Reform Act ("PLRA") and that she is entitled to qualified immunity. (See id.) Plaintiff did not file a response.

Because the Court concludes that plaintiff did not exhaust his available administrative remedies, the Court recommends that defendant's motion for summary judgment be granted and that this action be dismissed without prejudice.1

II. BACKGROUND

A. Plaintiff's allegations

Plaintiff was incarcerated at the KCCF from January 20, 2018, to January 30, 2019. (Dkt. 18 at ¶ 16.) Plaintiff alleges that on February 3, 2018, defendant placed him in a cell that had feces spread over the sink, faucet, toilet, and bed. (Dkt. 8 at 3.) He alleges the "stench" was overpowering and that when he asked defendant for cleaning supplies, she gave him one cloth rag. (Id.) He further alleges that he was forced to sleep on the floor, was unable to drink water due to the condition of the sink, and was not allowed to shower for the 48 hours he was housed in the cell. (Id.)

B. Grievance procedure

The King County Department of Adult and Juvenile Detention's ("DAJD") grievance procedure is outlined in the Inmate Handbook. (Dkt. 18 at ¶ 4.) A "grievance" is a complaint, problem, or issue brought to the jail's attention via an Inmate Grievance Report form. (Id.) Inmate Grievance Report forms are available by requesting them from the officer on each housing floor and may be returned to a locked box in each unit. (Id.) Inmates are provided with instructions on how to file a grievance on the form itself and also in the Inmate Handbook under a section entitled "Grievance Procedures." (Id.)

Inmates are instructed to file any grievance within 14 days of the event prompting the grievance report. (Id. at ¶ 5.) The purpose of this time limit is to provide the jail an opportunity to rectify any issues and to promptly perform any necessary investigation to minimize the risk of lost evidence or fading memories. (Id.) Per policy, absent rare and extraordinary circumstances, each grievance is reviewed and responded to within 10 days. (Id.)

Inmates are permitted to appeal the response to each grievance within 5 days if the inmate has new information or believes that the original reviewer committed "some possible error." (Id. at ¶ 6.) The instructions for appealing a grievance are included on the Inmate Grievance Report form, and inmates are instructed to use the same form that was submitted for the original grievance and that contains the reviewer's response. (Id.)

C. Plaintiff's grievances

Defendants have submitted all the grievances plaintiff filed while at the KCCF. (See Dkt. 18.) Only one addresses the claim raised in this lawsuit. On February 23, 2018, plaintiff submitted a grievance that stated:

(Id. at 18.) Plaintiff also wrote, "I talk [sic] with C/O Hall to let me clean it and she did." (Id.) Staff responded on March 8, 2018, and plaintiff did not appeal. (Id. at 19.)

III. DISCUSSION

Under the PLRA, a prisoner must exhaust "available" administrative remedies before filing suit. Woodford v. Ngo, 548 U.S. 81, 85 (2006); Albino v. Baca, 747 F.3d 1162, 1165 (9th Cir. 2014) (en banc); 42 U.S.C. § 1997e(a) ("No 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 are available are exhausted."). The prisoner must complete the administrative review process in accordance with the applicable rules. Woodford, 548 U.S. at 92.

Defendant bears the initial burden of showing that there was an available administrative remedy and that plaintiff did not exhaust that remedy. Albino, 747 F.3d at 1169, 1172. Once that showing is made, the burden shifts to plaintiff, who must either demonstrate that he, in fact, exhausted administrative remedies or "come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Id. at 1172. The ultimate burden, however, rests with defendant. Id.

Summary judgment is appropriate if the undisputed evidence, viewed in the light most favorable to plaintiff, shows a failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). Any unexhausted claims should be dismissed without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), overruled on other grounds by Albino, 747 F.3d at 1162 ("If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice."); Carrea v. California, 551 Fed. Appx. 368, 369 (9th Cir. 2014) (remanding for the entry of dismissal without prejudice because the proper remedy for non-exhaustion is dismissal without prejudice).

Defendant has submitted evidence regarding the DAJD grievance program, summarized above, that satisfies her initial burden of showing that plaintiff had an available administrative remedy. The undisputed evidence, when viewed in the light most favorable to plaintiff, is that plaintiff filed an initial grievance regarding the conditions of his cell on February 3, 2018, but that he did not exhaust his available administrative remedies by filing an appeal. See Bizzell v. King Cnty. Dep't of Adult, No. 16-401, 2016 WL 6956831, at *3-*4 (W.D. Wash. Oct. 24, 2016) (plaintiff failed to exhaust DAJD's administrative remedies where he filed a grievance but did not appeal). Accordingly, defendant is entitled to summary judgment.

IV. CONCLUSION

The Court recommends that defendant's motion for summary judgment (Dkt. 16) be GRANTED and that this action be DISMISSED without prejudice. A proposed order accompanies this Report and Recommendation.

Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within twenty-one (21) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on May 31, 2019.

ORDER OF DISMISSAL

Having reviewed the Report and Recommendation of the Honorable Mary Alice Theiler, United States Magistrate Judge, any objections or responses to that, and the remaining record, the Court finds and ORDERS:

(1) The Court ADOPTS the Report and Recommendation;

(2) Defendant's motion for summary judgment (Dkt. 16) is GRANTED based on plaintiff's failure to exhaust his available administrative remedies;

(3) This action is DISMISSED without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), overruled on other grounds by Albino, 747 F.3d at 1162 ("If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice."); Carrea v. California, 551 Fed. Appx. 368, 369 (9th Cir. 2014) (remanding for the entry of dismissal without prejudice because the proper remedy for non-exhaustion is dismissal without prejudice); and

(4) The Clerk is directed to send copies of this Order to the parties and to Judge Theiler. Dated this ___________ day of _______________________________, 2019.

JUDGMENT IN A CIVIL CASE

_____ Jury Verdict. This action comes before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

X Decision by Court. This action came to consideration before the Court. The issues have been considered and a decision has been rendered.

THE COURT HAS ORDERED THAT

By Order of the Court, this case is dismissed without prejudice.