ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants Veal, Cry, Silbaugh and Smith move to dismiss for failure to exhaust administrative remedies. See 42 U.S.C. § 1997e. Defendants Higgins and Tyler have joined in the motion. For the reasons set forth below, the court recommends that the motion be granted.
This matter proceeds on the complaint filed on December 21, 2006, in which plaintiff claims that Cry, Higgins, Silbough, Smith, Tyler and Veal maintain policies and practices that discriminate against plaintiff in access to education and work programs based on his mental health condition, they treat him differently from other mentally ill prisoners, and they expelled him from a mental health program because he refused to volunteer for a different but similar program. Compl., at 7. Initially the court dismissed the complaint with leave to amend because the court could not discern the nature of plaintiff's claims. Plaintiff failed to amend, and on June 26, 2007, the action was dismissed on the ground that plaintiff failed to state a claim for relief. Order filed June 26, 2007. Plaintiff appealed, and the Ninth Circuit reversed, finding that plaintiff stated a claim for relief, and remanded with instructions that this court determine whether this action was covered in whole or in part by the class action Coleman v. Schwarzenegger, D.C. No. CV-90-00520 LKK (E.D. Cal.). Orders filed Nov. 6, 2007, and Feb. 21, 2008. On remand, this court ordered counsel from the Office of the Attorney General to brief this question, and after considering the response from that Office's lead counsel in Coleman, determined that it is not. Order filed July 10, 2008. Therefore, the court ordered that this action would proceed pursuant to the statutes and rules that govern suit brought by prisoners suing about the conditions of their confinement. Id.
Having resolved the question presented by the Ninth Circuit, this court ordered service of process on all defendants. In due course, defendants Cry, Silbaugh and Veal filed a motion to dismiss on the grounds that plaintiff failed to exhaust the available administrative remedies and failed to state a claim upon which relief could be granted.*fn1 Defs.' Mot. to Dism., filed Aug. 4, 2008. Plaintiff failed to file an opposition or statement of no opposition to defendants' motion. Therefore, the court ordered plaintiff to respond to the motion, warning him that if he failed to do so he risked having this action dismissed. Order filed Nov. 12, 2008. Shortly thereafter, plaintiff filed a document styled, "Notice of Deficiency," explaining that he could not oppose the motion to dismiss because defendants' counsel recently had notified him that Higgins had been served, and he could not file an opposition unless Higgins joined in the motion. Pl.'s Ntc., filed Nov. 13, 2008. In response, on December 15, 2008, defendants Cry, Silbaugh, Smith and Veal requested that the court dismiss this action for plaintiff's failure to oppose their motion.
Meanwhile, on December 19, 2008, Higgins and Tyler filed a request to join the other defendants' motion to dismiss on the ground that plaintiff failed to exhaust the available administrative remedies. Plaintiff then filed a document styled, "Objections to Motion to Dismiss," explaining why the motion to dismiss should be denied. Pl.'s Objs., filed Dec. 29, 2008. This document hereby is construed as an opposition to the motion to dismiss.
In the December 21, 2006, complaint, plaintiff alleges that he suffers from a mental illness. He does not say what that illness is. At the time of the events upon which he bases his claims, he was housed at the California Medical Center ("CMF"). He claims that defendants Cry, Higgins, Silbaugh, Smith, Tyler and Veal, employees or officers at that facility, maintained policies and practices that discriminated against him in access to education and work programs based on his mental health condition and that they denied him adequate care. He alleged that as a result of these practices and policies, he is barred from employment and from having ten hours of support group time per week, and that he is not "able to have cell living like the other mentally ill inmates housed in the CMF." Compl., at 7. Also, he alleges that he arbitrarily has been denied appropriate mental health care. As an example, he asserts that he was expelled from the Enhanced Outpatient Program ("EOP) because he refused to volunteer for a similar mental health program. Id. Plaintiff seeks declaratory relief, compensatory damages and punitive damages. Id. at 12.
With their motion to dismiss, defendants have submitted the declaration of the current Appeals Coordinator at CMF, D. Lewis, who has examined CMF records to determine whether plaintiff submitted for review on the Second Formal Level of Review any appeals concerning the matters raised in the complaint. Lewis Decl., ¶ 1-3.*fn2 Attached to the declaration is a computer printout of plaintiff's appeals received and processed on the First and Second Formal Levels of Review from June of 2005 through April of 2008. Lewis Decl., Attach. 1. Plaintiff submitted an appeal*fn3 dated May 14, 2006, designated Log No. 06-M-1181, alleging that since he refused to volunteer for a mental health program, he was being forced to move into a hostile dorm environment. Id. at ¶ 15. Prison officials screened out this appeal and returned it to plaintiff on May 18, 2006, because he sought to challenge an action, i.e., a housing change, which had yet to occur. Id. At the time they returned the appeal, they also informed plaintiff that he must submit the "CDC 128c*fn4 that documented his change in level of care." Id. On May 23, 2006, plaintiff filed a new appeal in which he asserted that he was being removed from the EOP level of care because he would not volunteer for a Department of Mental Health day treatment program. Id. at ¶ 16. On May 24, 2006, plaintiff resubmitted the appeal Log No. 06-M-1181 with the required documentation. Id. Instead of giving the May 23 appeal its own number, prison officials joined it with the appeal filed May 24 because they appeared to complain of the same action. Id. Prison officials responded to the consolidated appeal designated Log No. 06-M-1181 by denying it on July 21. Id. at ¶ 17; Lewis Decl., Attach. 1. Based on the log of plaintiff's appeals, which does not reflect any further activity on that appeal, Lewis asserts that plaintiff did not submit this appeal to the Second Level of Review. Id.; Lewis Decl., Attach. 1.
On August 8, 2006, plaintiff filed a new appeal complaining of his removal from the EOP level of care. Id. ¶ 18. He alleged that prison officials moved him to the CCCMS*fn5 level of care because he did not volunteer for a Department of Mental health day treatment program. Id. Prison officials screened out this grievance because it duplicated the issues raised in Log No. 06-M-1181. Again, Lewis relies on the attached log of appeals as evidence that plaintiff did not file and pursue to the Second Formal Level of Review any other appeals about this matter before commencing this action.
Defendants also submit the declaration of T. Emigh, the Acting Chief of the Inmate Appeals Branch of the CDCR. Emigh Dec., at ¶ 1. Attached to the declaration is a computer printout of plaintiff's appeals received and processed on the Director's Level of Review between February 16, 2002, and January 18, 2008. Emigh Decl., Attach. 1. T. Emigh explains that he has searched the CDCR's database of grievances filed at the Director's Level of Review and determined that there is no record that plaintiff filed an appeal on that level concerning his removal from the EOP program. Id. at ¶ 6-7. Neither did he find any record that plaintiff filed an appeal about actions taken by defendants Cry, Silbaugh, Smith, Tyler or Veal in relation to plaintiff's mental health. Id. at ¶ 8.
In his opposition to defendants' motion to dismiss, plaintiff concedes that he did not appeal the matters alleged in the complaint to the Director's Level of Review. Dckt. 63, at 1.
III. Request for dismissal by Cry, Silbaugh, Smith and Veal
As noted above, defendants Cry, Silbaugh, Smith and Veal request that this action be dismissed for plaintiff's failure to oppose their motion to dismiss. In their request, filed on December 15, 2008, these defendants point out that the court gave plaintiff 15 days to file an opposition or statement of no opposition to their motion and warned him that failure to do so would result in a recommendation that this action be dismissed. The court has the authority to dismiss an action if a plaintiff, even one proceeding without counsel, disobeys the court's orders. Local Rule 11-110; See Ferdik v. Bonzelet, 963 F.2d 1258, 1252 (9th Cir. 1992). However, in this case the court declines to do so. Here, plaintiff had difficulty serving Higgins and Tyler. They were not served until after the other defendants had moved to dismiss, but plaintiff understood the grounds in the motion to apply to defendant Higgins. Pl.'s Ntc., filed Nov. 13, 2008. Therefore, once plaintiff learned that Higgins had been served, he felt he could not oppose the motion unless Higgins formally was a party to it. Id. On December 29, 2008, about ten days after Higgins ...