FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. In his complaint, plaintiff alleges that on January 7, 2007, while he was housed at Folsom State Prison, defendant Butler handcuffed him and then began to drag him by the arms, causing him to cry out in pain, and that defendants Phillips and Pulley did not intervene. As a result, he avers, a bone in his left arm is dead. Complaint (Compl.) at 5-6.
Defendants have filed a motion to dismiss, alleging that plaintiff has failed to exhaust his 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, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules ...,". Woodford v. Ngo, 548 U.S. 81, 90 (2006). However, an inmate is required to exhaust only those remedies that are available; for a remedy to be "available," there must be the "possibility of some relief. . . ." Booth, 532 U.S. at 738. 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 15 Cal. Code Regs. §§ 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.
15 Cal. Code Regs. § 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. To bear this burden: a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case, . . . . With regard to the latter category of evidence, information provided the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, "available."
Defendants have supported their motion with two declarations. The first is from D. Lewis, the Appeals Coordinator at California Medical Facility in Vacaville (CMF), who declares that he (or she) is responsible for "maintaining records of all logged appeals filed by prison inmates housed at CMF" and "all appeals filed by inmates at CMF that have been screened out for failure to comply with proper procedures." Declaration of D. Lewis (Lewis Decl.) ¶ 2. Lewis avers that "[t]here are no grievances received and logged from inmate Robert Franklin at any time after January 7, 2007 pertaining to a staff complaint or use of force by officers on January 7, 2007. Id. ¶ 7. Lewis does mention a grievance "logged and accepted for review between January 7, 2007 and April 5, 2007," which is identified as HDSP-A-07-00770, received February 16, 2007, and denied April 4, 2007. Id. ¶ 6. Lewis does not identify this as a grievance filed by plaintiff or explain how he had access to a grievance identified as one from High Desert State Prison (HDSP) when he does not otherwise mention his ability to access grievance databases from other prisons.
The second declaration is from N. Grannis, the Chief of the Inmate Appeals Branch (IAB), who avers that plaintiff has not filed a third-level appeal with the IAB concerning his claim that defendants Phillips and Pulley did not intervene when defendant Butler dragged him by the arms. Declaration of N. Grannis (Grannis Decl.) ¶¶ 3-4.
These two declarations do not satisfy defendants' burden of proof. First, the declaration from D. Lewis suggests only that he maintains the grievances submitted at his institution, CMF, yet the event that forms the basis of this complaint occurred at Folsom State Prison, which would appear to be the appropriate locus of any grievance. On the record before the court, Lewis's declaration is simply irrelevant to the resolution of the issue defendants have raised in their motion to dismiss.
Defendants go no further in proving failure to exhaust by relying on Grannis's declaration. Under departmental regulations, a grievance describing a correctional officer's use of force or failure to prevent a use of force against an inmate would be treated as a staff complaint, which may channel it into a separate investigation. Compare Departmental Operations Manual (DOM) §§ 5410025.2, 5410025.3 & 31140.9, 31140.11. Categorization as a staff complaint "thereby negat[es] any possibility of a parallel investigation through the appeal process." Brown v. Valoff, 422 F.3d at 938-39.*fn1 Grannis's declaration, then, does not provide sufficient proof that any relief would be available to plaintiff through the grievance system.
Defendants attempt to fill the lacuna in their showing by relying on plaintiff's opposition to argue that plaintiff has, in essence, conceded his failure to exhaust. Reply at 2-3.
Plaintiff has provided a number of irrelevant exhibits, but has submitted his opposition brief itself under the ...