The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Koller's July 2, 2008, motion to dismiss for failure to exhaust administrative remedies. After carefully reviewing the record, the court recommends that defendant's motion be granted.
II. Plaintiff's Claims This action is proceeding on the third amended complaint filed December 21, 2007, as to defendants Judd and Koller.*fn1 Defendant Judd has not yet been served.
Plaintiff alleges that on or around April 15, 2007, he bought instant Folger's Coffee Crystals at the prison canteen. Plaintiff received the coffee in a brown paper bag. After drinking the instant coffee, plaintiff had pain in his legs and groin. Plaintiff alleges that prison officials tampered with the coffee.
III. Administrative Remedies
Defendant argues that plaintiff failed to exhaust his administrative remedies. 42 U.S.C. § 1997e(a) provides that, "[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." In order for California prisoners to exhaust administrative remedies, they must proceed through several levels of administrative appeal: 1) informal resolution, 2) formal written appeal on a CDC 602 inmate appeal form, 3) second level appeal to the institution head or designee, and 4) third level appeal to the Director of the California Department of Corrections. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement. Id. at 1237-38.
However, if the subject of the prisoner's complaint is a "staff complaint," such does not proceed through the ususal grievance procedures. The remedy for such a complaint is that CDCR initiate an investigation. An inmate can receive no other relief at that time regarding the staff complaint. Brown v. Valoff, 422 F.3d 926, 937-938 (9th Cir. 2005) (not cited in defendants' motion). If relief other than is available for a staff complaint is sought, e.g., be housed in protective custody, be single celled etc., then the regular three level appeal process must be exhausted as for that relief. Id at 938. If on a staff complaint, a request is granted or partially granted, i.e., an investigation is ordered, the inmate has exhausted all available remedies for the staff complaint. Id. at 937-938.
In Booth v. Churner, 121 S.Ct. 1819 (2001) the Supreme Court held that inmates must exhaust administrative remedies, regardless of the relief offered through administrative procedures. 121 S.Ct. at 1825. Therefore, inmates seeking money damages must completely exhaust their administrative remedies. 42 U.S.C. § 1997e(a) provides that no action shall be brought with respect to prison conditions until such administrative remedies as are available are exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002).
Defendant contends that plaintiff filed no administrative appeals regarding contaminated coffee. See Motion to Dismiss, Exhibit A, Declaration of M. Dangler, Appeals Coordinator at High Desert State Prison. In January 3, 2007, plaintiff filed grievance no. HDSP 07-0907 alleging that food staff had engaged in racial discrimination and that the food was substandard in quality and quantity. Motion to Dismiss, Exhibits A-1, A-2, A-3. This appeal did not contain plaintiff's claim regarding contaminated coffee.
In his opposition filed July 24, 2008, plaintiff suggests that prison officials tampered with his coffee in retaliation for pursuing appeal no. 07-0907. Plaintiff also may be arguing that appeal no. 07-0907 administratively exhausted the claims raised in this action.
It is clear that appeal no. 07-0907 did not raise the claim that plaintiff fell ill after drinking instant coffee tampered with by prison officials. If prison officials tampered with plaintiff's coffee in retaliation for filing 07-0907, plaintiff was still required to exhaust his administrative remedies as to this claim. Accordingly, the court finds that plaintiff has failed to exhaust his administrative remedies. Defendant's motion to dismiss should be granted.
IT IS HEREBY RECOMMENDED that defendant Koller's July 2, 2008, motion to dismiss be granted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to ...