FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Before the court is defendants' February 7, 2008, motion to dismiss the case on the ground that plaintiff failed to properly exhaust available administrative remedies prior to bringing this action. Plaintiff has filed a timely opposition and defendants have filed a timely reply. Plaintiff has also filed an unauthorized objection to defendants' reply. See E.D. Cal. Local Rule 78-230(m).
In his complaint plaintiff alleges as follows. On July 6, 2006, after having been placed on lock-down status due to ongoing violence between African American and Southern Mexican inmates, plaintiff received clearance to go back to his work assignment on Yard 1. (Compl. at 5.) On his way to work, he noticed at least twenty Southern Mexican inmates gathered together on the south side of the yard. (Id. at 6.) He also noticed about twenty African American inmates walking around the yard. (Id. at 7.) When the yard opened for the general population, the inmates assembled together by racial background on different sides of the basketball court. (Id.) Plaintiff noticed more Southern Mexican inmates gathering together and looking in their direction. (Id.) A few minutes later, inmate Ramirez and one of his friends approached plaintiff. (Id.) The three discussed their mutual concerns regarding both racial groups being in such close proximity after just having come off of lock-down status. (Id.)
Plaintiff and inmate Ramirez attempted to convince defendants Chirila and Cummings that inmates of the two races were too close in proximity to one another and that the Men's Advisory Committee ("MAC") should be called upon to speak with everyone to ensure that there was peace between the groups. (Compl. at 8.) Defendants replied that they had to wait until after yard recall to deal with the matter and maintained that the MAC Chairman was not cleared to come to the yard to address such situations. (Id. at 9.) Although plaintiff told defendants Chirila and Cummings that the matter was far too serious to wait until after yard recall, the defendants said that there was nothing they could do. (Id.)
Plaintiff alleges that he and inmate Ramirez looked back at the basketball court and noticed forty to forty-five Southern Mexican inmates and nineteen to twenty-one African American inmates looking at one another. (Compl. at 10.) Inmate Ramirez suggested it would be best if plaintiff could convince the African American inmates to leave the basketball court until both races reached an understanding. (Id.) He said he would tell his group to do the same. (Id.)
According to plaintiff, none of the African American inmates were contemplating an attack on the Southern Mexican inmates. (Compl. at 10.) Plaintiff claims that he and inmate Munns approached the Southern Mexican inmates and reached an agreement to trust each other. (Id. at 11.) They shook hands, and plaintiff and inmate Munns began walking back towards their side of the basketball court when one of the African American inmates yelled "here they come."
(Id. at 11-12.) Within seconds they were surrounded by Southern Mexican inmates and fighting for their lives. (Id.) Plaintiff alleges that defendants Chirila and Cummings merely watched as the situation erupted into violence and bloodshed since nearly all of the Southern Mexican inmates had some type of weapon. (Id.) Plaintiff claims that he and several other African American inmates received serious injuries as a result of the riot. (Id.) Based on these allegations, plaintiff contends that the defendants violated his Eighth Amendment rights by failing to provide him adequate protection despite full knowledge of the impending danger.
DEFENDANTS' MOTION TO DISMISS
Defendants argue that plaintiff's action should be dismissed because he brought this suit prior to exhausting his administrative remedies. (Defs.' Mot. to Dismiss at 2; Cervantes Decl. at 2.) Defendants contend that, on August 17, 2006, plaintiff attempted to file an administrative appeal regarding the incident of July 6, 2006, but prison officials rejected it as untimely. (Defs.' Mot. to Dismiss at 2; Flores Decl. at 2.) Plaintiff subsequently attempted to file administrative appeals on September 11, September 13, September 20, and October 20, but prison officials similarly rejected them. (Defs.' Mot. to Dismiss at 2; Flores Decl. at 2.)
Defendants argue that the Prison Litigation Reform Act mandates that plaintiff exhaust administrative remedies prior to filing a civil rights complaint in federal court. (Defs.' Mot. to Dismiss at 3.) In addition, defendants argue that "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules. . . ." (Id. at 4.) Defendants contend that prison officials properly rejected plaintiff's August 17, 2006 administrative appeal as untimely. (Id. at 5.) Defendants also contend that prison officials properly rejected plaintiff's four subsequent appeals because they were duplicative of his previous untimely filing. (Id.) Defendants note that, at each stage of the process, plaintiff could have provided the prison's appeals coordinator with an explanation as to why his appeal was untimely filed but failed to do so. In this regard, defendants contend that plaintiff's lengthy and argumentative submissions failed to provide a credible basis for granting him relief from the initial decision finding his grievance to be untimely. (Id.) Finally, defendants assert that in any event plaintiff never did file an appeal to the director's level seeking relief and thus failed to pursue his administrative grievance through to the highest level of review prior to filing suit.
Defendants contend that plaintiff failed to complete the administrative grievance process in compliance with the applicable procedural rules. Accordingly, defendants conclude that plaintiff's complaint should be dismissed. (Defs.' Mot. to Dismiss at 5-6.)
II. Plaintiff's Opposition
In opposition, plaintiff argues that the appeals coordinator at CSP-Solano prevented him from exhausting his claims. (Pl.'s Opp'n to Def's. Mot. to Dismiss at 2, 8-9.) Plaintiff appears to acknowledge that he filed his initial administrative appeal late under the applicable regulations but explains that the delay in filing was justified and resulted from him waiting to receive copies of his medical records that he needed to present his grievance. (Id. at 7-8.) In the alternative, plaintiff appears to contend that his grievance should not have been rejected as untimely because under the applicable regulations there is a one-year time limit for filing administrative appeals relating to claims of employee misconduct and his was such a claim. (Id. at 7 & 10.) Plaintiff argues that the appeals coordinator's unprofessional conduct prevented him from pursuing his appeal through to the director's level of review. (Id.) Plaintiff concludes that ...