The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On July 12, 2007, defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) on grounds that plaintiff failed to exhaust administrative remedies.*fn1 On August 27, 2008, the court set for evidentiary hearing the issue of plaintiff's administrative exhaustion. On November 7, 2008, the evidentiary hearing was held. After carefully considering the record, the court recommends that defendants' motion be granted.
This action is proceeding on the original complaint filed February 10, 2006, against defendants Sacramento County, Sacramento Sheriffs Department and Sheriff Lou Blanas. Plaintiff alleges that he was housed in the Sacramento County Jail as a pretrial detainee from December 2002 for approximately one year. Complaint, ¶¶ 12, 15. Plaintiff alleges that defendants' unofficial policy of requiring inmates of the same race to be housed together violated the Equal Protection Clause.
42 U.S.C. § 1997e(a) provides that, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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." The defendant bears the burden of raising and proving absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). "In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id.
In Booth v. Churner, 121 S.Ct. 1819 (2001) the Supreme Court held that inmates must exhaust administrative remedies, regardless of the relief offered through administrative procedures. 121 S.Ct. at 1825. Therefore, inmates seeking money damages must completely exhaust their administrative remedies. 42 U.S.C. § 1997e(a) provides that no action shall be brought with respect to prison conditions until such administrative remedies as are available are exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002).
In order to exhaust administrative remedies at the Sacramento Jail, an inmate must proceed through three levels of review. Defendants' Exhibit B, ¶ 2. The first level of review is informal resolution and provides that an inmate must first direct his problem to the Housing Unit Officer. Id., ¶ 3. If the officer does not resolve the issue, the inmate may file a formal written grievance. Id.
The second level of review is a formal written grievance which provides that an inmate must file a grievance within five calendar days of the incident regarding any condition of confinement. Id., ¶ 4. Any written grievance must be turned into a Housing Unit Deputy who shall resolve the problem if possible. Id. If the Housing Unit Deputy does not resolve the problem, the grievance is forwarded to the Sergeant. Id. The Sergeant shall then take any appropriate action necessary to resolve the problem. Id. If the Sergeant is unable to resolve the problem, the package is forwarded to the Executive Lieutenant within ten days. Id. Once the Executive Lieutenant receives the package, he has five days to respond. Id.
The third level of review is an appeal to the jail commander. Id., ¶ 5. Once an inmate receives a reply to a written grievance and is dissatisfied with the reply, he may send a written appeal to the jail commander. Id.
In support of their motion to dismiss, defendants referred to the declaration of Brendon Hom, the Administrative Sergeant in the Executive Office at the Sacramento County Jail. Motion to Dismiss, Exhibit B. Sergeant Hom stated that he searched the inmate grievance database at the jail which maintains all inmate grievances filed in the ordinary course of business. Id., ¶ 7. His search did not reveal any grievances filed by plaintiff regarding the claims raised in the instant action. Id.
In his opposition filed September 4, 2007, plaintiff alleged that in April and November 2003 he filed grievances regarding the racially discriminatory housing policy. Plaintiff claimed that jail officials refused to respond to these grievances. On December 6, 2007, the court ordered plaintiff to file a declaration describing in detail these grievances and his attempt to file them.
On December 21, 2007, plaintiff filed a declaration stating that his April 2003 grievance was collected by Deputy Hatfield, the acting housing officer. Plaintiff discussed this grievance with Deputy Gilstrap. The November 2003 grievance was collected by Deputy Weidman, the acting housing officer. Plaintiff was interviewed by Lieutenant Powell regarding this grievance. Plaintiff received no written responses to these grievances.
Because of the factual disputes, the court ordered an evidentiary hearing. In the January 28, 2008, the court stated that if jail officials failed to follow the regulations by providing plaintiff with a written response to his grievances, then plaintiff had exhausted his administrative remedies. Cf. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998) (when a prisoner has undertaken all possible appeals but the prison ...