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 defendant's January 11, 2008 motion to dismiss the case on the ground that plaintiff failed to exhaust his administrative remedies prior to bringing this action. Plaintiff has filed a timely opposition. Defendant has filed a reply.
In his amended complaint filed November 14, 2005, plaintiff alleges that, on June 17, 2003, a riot took place at High Desert State Prison (HDSP) between black and white inmates. (Am. Compl. at 5-6.)*fn1 Plaintiff further alleges that since this riot, he has been confined in his cell for twenty-four hours a day except for shower time three days each week. (Id.) Plaintiff contends that the named defendant, the warden at HDSP, has denied plaintiff outdoor recreation and exercise in violation of the Eighth Amendment. (Id.)*fn2
DEFENDANT'S MOTION TO DISMISS
Defendant argues that plaintiff failed to exhaust his administrative remedies prior to bringing this suit. (Def.'s Mot. to Dismiss at 5; Dangler Decl. at 2.) Specifically, defendant argues that the appeals coordinator at HDSP rejected plaintiff's administrative appeal as untimely. (Def.'s Mot. to Dismiss at 5; Dangler Decl. at 2.) In this regard, defendant contends that prison officials imposed the challenged lockdown on June 17, 2003 and that plaintiff submitted his appeal almost a year later on May 9, 2004. (Id.) Defendant contends that "proper exhaustion" requires compliance with established prison appeal procedures. (Id. at 6.) Defendant concludes that, because plaintiff failed to properly complete the appeals process, this action should be dismissed. (Id. at 6.)
II. Plaintiff's Opposition
In opposition, plaintiff argues that the appeals coordinator erroneously refused to process his administrative appeal. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 2.) Specifically, plaintiff explains that the appeals coordinator mistakenly believed his inmate appeal was challenging the initial lockdown when in fact the administrative appeal was directed at the ongoing, year-long deprivation of plaintiff's right to outdoor exercise. (Id.) Plaintiff concludes that by filing the inmate appeal on May 9, 2004, he met the legal requirements of exhaustion and requests that the court strike defendant's motion. (Id.)
In reply, defendant reiterates that plaintiff cannot claim exhaustion of his administrative remedies when the appeals coordinator "screened out" his appeal for failure to comply with the deadlines and procedures applicable to inmate grievance appeals. (Def.'s Reply at 2.) Defendant contends that in fact the appeals coordinator properly rejected plaintiff's administrative appeal because plaintiff complained in an untimely fashion about actions taken by prison officials a year before he filed the appeal. (Id.) Defendant notes that even if the appeals coordinator had "screened out" plaintiff's appeal in error, plaintiff failed to object to the rejection of his first and only inmate appeal. (Id. at 3.) Finally, defendant argues that plaintiff did not give prison officials an opportunity to address his issue by either renewing an appeal explaining that he was challenging the denial of outdoor exercise as opposed to the lockdown or by appealing the rejection of his appeal through to the director's level of review as he was required to do. (Id.)
IV. Legal Standards Applicable to a Motion to Dismiss
Pursuant to Non-Enumerated Rule 12(b) By the Prison Litigation Reform Act of 1995 (PLRA), Congress amended 42 U.S.C. § 1997e to provide that "[n]o 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." 42 U.S.C. § 1997e(a). The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The Supreme Court has ruled that exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). The Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. Id. at 741 n.6. Because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 92-93 (2006).
In California, prisoners may appeal "any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Most appeals progress from an informal review through three formal levels of review. See Cal. Code Regs. tit. 15, § 3084.5. A decision at the third formal level, also referred to as the director's level, is not appealable and will conclude a prisoner's administrative remedy. Cal. Code Regs. tit. 15, §§ 3084.1(a) and 3084.5(e)(2). A California prisoner is required to submit an inmate appeal at the appropriate level and proceed ...