The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is a motion to dismiss filed by defendants Woodford, Hickman, Terhune, Gomez and Tristan (Doc. 69). Plaintiff filed an opposition (Doc. 73) and defendants filed a reply (Doc. 74).
This case proceeds on plaintiff's amended complaint (Doc. 47), wherein he raises claims regarding denial of dental care. The court has authorized service on defendants Tilton, Nessenson, Duckett, Stogsdill, Morris, Sturges, Woodford, Hickman, Terhune, Gomez, Yamamoto, Tristan, Williams, Romary, and Ling. Defendants Duckett, Morris, Nessenson, Stogsdill, Sturges, Tilton and Williams have filed an answer (Doc. 57).*fn1
In his complaint, plaintiff alleges he was denied necessary dental care by the dentists employed by the California Department of Corrections (CDC).*fn2 Plaintiff contends he suffers from severe gum disease, and remains in excruciating pain, resulting in the loss of several teeth due to the lack of dental care. As to the moving defendants, plaintiff's complaint alleges they were each informed, either personally or through the inmate appeals process, of his need for adequate dental care. He claims they each deliberately denied him treatment, resulting in pain and loss of teeth.
The motion to dismiss filed by defendants Woodford, Hickman, Terhune, Gomez and Tristan is based on plaintiff's alleged failure to exhaust his administrative remedies against these individuals.*fn3
II. STANDARD FOR MOTION TO DISMISS
A motion to dismiss for lack of exhaustion of administrative remedies is properly the subject of an unenumerated motion under Federal Rule of Civil Procedure 12(b). See 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 pleading and decide disputed issues of fact." Id. at 1119-20. If the court concludes that administrative remedies have not been exhausted, the unexhausted claim should be dismissed without prejudice. See id. at 1120.
Defendants argue that while plaintiff filed inmate grievances, the grievances failed to put the moving defendants on notice of the claims plaintiff presents in his amended complaint. Specifically they argue that plaintiff did not submit any grievances while defendants Hickman, Terhune and Gomez were employed as Director of CDC or Secretary of the CDCR. They contend that defendant Gomez was Director from 1991 to 1997, Terhune was Director from 1997 to 2000, and Hickman was Secretary from July 2005 to February 2006. During this time, plaintiff did not submit any inmate grievances addressing his dental care. They further ague that defendant Woodford was Director from February 2004 to June 2005 and Secretary from February 2006 to April 2006. Plaintiff did not file any inmate grievances during her later tenure, but did file two during her former tenure. However, defendant Woodford argues that the two grievances plaintiff filed between 2004 and 2005 did not reference any action by her or any problem with policies she may have promulgated.
Finally, the defendants contend that defendant Tristan never served as either Director or Secretary, but did serve in various executive positions within the agencies during the relevant time frame. During the relevant time frame, in addition to the two above mentioned grievances plaintiff filed during 2004 and 2005, the defendants contend plaintiff filed three others concerning his dental care. However, they argue, none of these grievances provided defendants Gomez, Terhune, Woodford, Hickman or Tristan notice of plaintiff's claims, thus his claims against them are unexhausted and they should be dismissed from this action.
Pursuant to the Prison Litigation Reform Act (PLRA), prisoners seeking relief under § 1983 must exhaust all available administrative remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The Supreme Court recently addressed the exhaustion requirement in Jones v. Bock, and held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint because lack of exhaustion is an affirmative defense which must be pleaded and proved by the defendants; (2) an individual named as a defendant does not necessarily need to be named in the grievance process for exhaustion to be considered adequate because the applicable procedural rules that a prisoner must follow are defined by the particular grievance process, not by the PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not all, claims are unexhausted. See 549 U.S. 199 (2007). The Supreme Court also held in Woodford v. Ngo that, in order to exhaust administrative remedies, the prisoner must comply with all of the prison system's procedural rules so that the agency addresses the issues on the merits. See 548 U.S. 81, 89-96 (2006). Thus, exhaustion requires compliance with "deadlines and other critical procedural rules." Id. at 90. Partial compliance is not enough. See id.
A prison inmate in California satisfies the administrative exhaustion requirement by following the procedures set forth in §§ 3084.1-3084.7 of Title 15 of the California Code of Regulations. In California, inmates "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). These regulations require the prisoner to proceed through several levels of appeal: (1) informal resolution; (2) formal appeal; (3) second level appeal to institution head; (4) third level appeal to the director of the California Department of Corrections and Rehabilitation. A decision at the third formal level, which is also referred to as the director's level, is not appealable and concludes a prisoner's departmental administrative remedy. See Cal. Code Regs. tit. 15, §§ 3084.1(a) and 3084.5(e)(2). Departmental appeals coordinators may summarily reject a prisoner's untimely administrative appeal. See Cal. Code Regs. tit. 15, §§ 3084.3(c)(6) and 3084.6(c). If a group of inmates intend to appeal the same decision or action, one grievance form is used and a list of the participating inmates must be attached. The list must be legible and state the inmates' names, departmental identification numbers, and housing assignment. The form must also be signed by all participating inmates. Currently, California regulations do not contain any provision specifying who must be named in the grievance. See Cal. Code Regs. tit. 15, § 3084.5 (requiring only that the prisoner describe the problem and action requested).
Here the defendants acknowledge that plaintiff filed inmate grievances, but argue that because they were not filed while defendants Gomez, Terhune and Hickman were employed as Director and/or Secretary, the inmate grievances plaintiff filed were insufficient to exhaust administrative remedies as against them. Defendants Woodford and Tristan argue that although plaintiff filed his inmate grievances while they were employed with the CDC and/or CDCR, plaintiff failed to name ...