ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983 challenging a policy at High Desert State Prison (HDSP) that restricts an inmate's yard time during lockdowns. Defendant has filed a motion for judgment on the pleadings, which he asks the court to interpret as a motion to dismiss for failure to exhaust administrative remedies.
Plaintiff has filed a motion to appoint counsel, a motion for class certification, a motion for the court to subpoena records, a request for the appointment of an expert witness, and a request for withdrawal of files and records from this court.
I. The Motion For Judgment/Motion To Dismiss
A. The Exhaustion Of Administrative Remedies
The Prison Litigation Reform Act (PLRA) provides that "no action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Conditions of confinement" subject to exhaustion have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prisons." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). Proper exhaustion of available remedies is mandatory, even when the prisoner seeks only money damages not available through the grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001); Woodford v. Ngo, 548 US 81 (2006) (addressing timeliness aspect of proper exhaustion). The grievance process must be completed before the inmate files suit; exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002).
California prison regulations provide administrative procedures in the form of one informal and three formal levels of review to address an inmate's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5.
Finally, to satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint. Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case"); Brown v. Sikes, 212 F.3d 1205, 1209 (11th Cir. 2000) (1997e(a) requires that a prisoner provide as much relevant information as he reasonably can in the administrative grievance process).
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. Defendants bear the burden of proving plaintiff's failure to exhaust. Id. at 1119.
B. Plaintiff's Use Of The Grievance Process
In his amended complaint, plaintiff alleges he filed an administrative grievance about the restrictions on his access to the yard, but pursued it through the informal level only. Amended Complaint (Am. Compl.) at 5.*fn1 In his deposition, plaintiff explains that he has tried to pursue the grievance further, but "I can't get an answer from them." Motion (Mot.), Ex. A at 40:10. He also says that when he doesn't get a response, he files another grievance on the same subject, but "I won't send the original because they destroy it and they will have never answered me." Mot., Ex. A at 40:17-18, 50:7-8. He does attempt to proceed through the remaining levels of review by sending a handwritten copy of the original 602 form, reproducing the informal response, but in his own handwriting. Mot., Ex. A at 50:8-12.*fn2 As support for his opposition, however, plaintiff has sent a photocopy of a grievance form, which complains that he is not receiving daily yard time at HDSP. It is dated October 5, 2006 and stamped "received" in the HDSP appeals office on October 10, 2006. Plaintiff received an informal response in February 2007, but nothing on the form suggests that he pursued this grievance further.
Opposition (Opp'n), Ex. B.
Plaintiff has submitted additional exhibits showing his attempts to exhaust administrative remedies. Exhibit A consists of a grievance dated September 17, 2006 and stamped "received" in the HDSP appeals office on September 19, 2006, and a "screen out" notice dated January 13, 2007. This notice, however, does not clearly correspond to the grievance concerning yard time.
He also has attached an appeal dated October 11, 2007, protesting the restriction on yard time during lockdowns; it was screened out as an abuse of the appeals process. Opp'n, Ex. C. Finally, he has provided a copy of a grievance about yard time, dated March 4, 2008, which apparently was screened out because plaintiff was no longer housed at HDSP at the time it was filed. Opp'n, Ex. D.*fn3
Defendant has submitted the declaration of M. Dangler, the Appeals Coordinator at the prison, who maintains HDSP's database of appeals that have been screened out and returned to inmates. Mot., Ex. B ¶¶ 2, 4-5. Dangler avers that plaintiff filed several grievances concerning yard ...