FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. In general, he alleges that he is a pre-operative transsexual and that the defendants have failed to protect him and to provide appropriate housing for him. He also alleges that the defendants have colluded to hide staff misconduct.
Specifically, he alleges that on March 29, 2003, he was assaulted in his cell by another inmate. Defendant Tuffin was in charge of the controls to open and close the cell doors. Amended Complaint (Am. Compl.) ¶ 18. Plaintiff says he submitted a grievance about Tuffin's action on May 9, 2003, but withdrew it on May 25, 2003, after Lieutenant Myers offered to have him transferred if he did so. Id. ¶ 25. He then told M. McDonald, the chairman of the classification committee, that he had withdrawn his complaint against Tuffin because of the promise he would be transferred. Id. ¶ 27. Despite the fact that he withdrew his staff misconduct complaint, he wrote to the Director of the California Department of Corrections and Rehabilitation (CDCR) about the incident and received a letter from defendant Runnels' office in response to his attempts to bring Tuffin's misconduct to the attention of CDCR officials. Id. ¶¶ 30-34.
Plaintiff also recounts his attempts to be classified in a manner that would facilitate his transfer from High Desert State Prison (HDSP) to California Mens' Colony, where he was previously housed and where he feels safe. Id. ¶¶ 35, 37. He alleges he was told he would be transferred after his misconduct complaint against defendant Tuffin was resolved, but has instead been released from Administrative Segregation to general population, in derogation of his safety. Id. ¶¶ 44, 46.
Defendants have filed a motion to dismiss the complaint, arguing that plaintiff has failed to exhaust his administrative remedies and that the complaint fails to state a claim as to defendants Runnels and Felker.
A. Exhaustion Standards Under The Prison Litigation Reform Act (PLRA)
The 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); Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378 (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 15 Cal. Code Regs. §§ 3084.1-3084.7. An initial grievance must be filed within fifteen working days of the challenged act or omission. 15 Cal. Code Regs. § 3084.6(c)(6). 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.), cert. denied sub nom. Alameida v. Wyatt, 540 U.S. 810 (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.
Defendants have submitted the declarations of M. Dangler, Appeals Coordinator at High Desert State Prison, where the challenged acts and omissions occurred, and N. Grannis, the chief of the Inmate Appeals Branch. Dangler avers that he conducted a search of plaintiff's appeals file and concluded that it contains no appeal exhausted through the second level between March 29, 2003 and May 23, 2005 about an assault in plaintiff's cell, his concerns with his placement at HDSP, or a conspiracy by staff members to cover up his complaint against defendant Tuffin. Declaration of M. Dangler (Dangler Decl.) ¶ 13.
Grannis avers that the Inmate Appeals Branch (IAB) has not accepted a Director's Level appeal from plaintiff regarding an assault in his cell, the propriety of housing him at HDSP or a conspiracy to cover up the assault on him. Amended Declaration of N. Grannis (Am. Grannis Decl.) ¶ 12. She has provided a printout from IAB, showing those of plaintiff's grievances either adjudicated at the Director's Level or screened out for untimeliness, incompleteness or other reasons. Am. Grannis Decl., Ex. A. The printout shows that one medical grievance, 03-359, was adjudicated at the Director's Level in 2003. Id.
Plaintiff has provided copies of various grievances and officials' responses as exhibits to his complaint and to his opposition to the motion to dismiss.
On February 4, 2003, plaintiff filed a grievance or "602," Log No. 03-359, asserting he should not be housed at HDSP because there are no groups for transgender inmates, he has difficulty talking to the doctor about the hormones he is taking, and the regulations provide that transgender inmates may require special placement. Am. Compl., Ex. A at 27.*fn1
Plaintiff appealed the first level denial, adding that his "safety concerns are a factor as well as medical issues" and that he had been assaulted for refusing a demand for sex. Id., Ex. A at 31. On May 2, 2003, the appeal was denied at the second level:
Your request for a transfer has been reviewed; it has been determined that you do not meet the guidelines for a medical transfer. . . . [I]f you required a medical treatment that is not available at HDSP, then a transfer would be arranged . . . . A review of your health record indicates that you are receiving hormone therapy . . . . Additionally, you have been referred to Mental Health. This indicates ...