ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. These findings and recommendations address two motions currently pending before this court: (1) defendants' motion to dismiss plaintiff's April 13, 2007 complaint for failure to exhaust his administrative remedies prior to filing suit (filed November 27, 2007 -- docket no. 21) and (2) plaintiff's motion for a temporary restraining order (filed July 18, 2008 -- docket no. 31). Also addressed herein is defendants' motion to strike plaintiff's surreply in connection with defendants' motion to dismiss (filed March 3, 2008 -- docket no. 29).
Plaintiff, a non-insulin dependant diabetic, alleges that between March of 2006 and the filing of his Complaint, he was not provided with meal replacement cheese crackers, which were owed to him as part of a special diet. (Compl. 17-19.)
Plaintiff was transferred to California State Prison, Sacramento (SAC) in March of 2006 from Wasco State Prison. (Compl. 6.) Sometime in April 2006, Plaintiff was seen by Defendant Borges, a doctor at SAC. Id. During this visit, Plaintiff told Defendant Borges that as a Type II or non-insulin dependant diabetic, he was entitled to a special diet. (Compl. 7.) Defendant Borges told Plaintiff that SAC did not provide special diets for inmates, but that the prison could provide him with "cheese crackers" as a meal supplement. (Compl. 8.) On April 20, 2006, Defendant Borges provided Plaintiff with a CDC 128C chrono valid for one year from April 17, 2006, for "cheese crackers." (Compl. 8, 27.)
On April 11, 2006, Sue Summersett, a registered dietician of the California Department of Corrections and Rehabilitation (CDCR), wrote all "correctional food managers" to inform them of a change in policy that, now, only insulin dependant diabetic inmates could receive peanut butter crackers. (Compl. 10.) On June 24, 2006, "B. Ruller" of the SAC Facility C main kitchen wrote a memo that: 1) restricted the distribution of cheese crackers to insulin dependant inmates; 2) substituted Ensure for cheese crackers for non-insulin dependant inmates who had previously received cheese crackers; and 3) placed the medical department in charge of administering the cheese crackers. (Compl. 11, 32.) As Plaintiff was a non-insulin dependant diabetic, he was not provided with any cheese crackers per this memo. (Compl. 11.)
On June 12, 2006, Plaintiff submitted an inmate grievance to the Chief Medical Officer, requesting that his prior medical chronos, including those for cheese crackers, be renewed. (Compl. 9.) On June 20, 2006, Plaintiff's grievance was screened out by Defendant O'Brien for failure to submit accompanying documentation. (Compl. 9, 23.) The SAC appeals office does not have any record of this grievance being successfully filed. ([Defs.'] Ex. A [in Supp. of Mot. to Dismiss ("Ex. A")], Decl. of R. Carter 2, 3.)
On July 14, 2006, Plaintiff submitted another inmate grievance addressed to the warden and chief medical officer of SAC through the inmate mail system. (Compl. 11, 24.) The SAC inmate appeals office received this grievance on September 15, 2006, and screened it out for being untimely. (Compl. 11, 23.) The SAC appeals office does not have any record of this grievance being filed. (Ex. A, Decl. of R. Carter 2, 3.)
Plaintiff attaches as an exhibit to his complaint, but does not include in his "statement of claims," a copy of a grievance submitted on August 1, 2006, that requested cheese crackers and the replacement of red meat in his food with tuna. (Compl. 33.) The SAC appeals office does not have any record of this grievance being filed. (Ex. A, Decl. of R. Carter. 2, 3.)
On December , 2006, Plaintiff submitted another inmate grievance regarding the cheese crackers. (Compl. 14, 40.) On December 26, 2006, Defendant O'Brien screened out Plaintiff's appeal for being untimely, noting that his appeal lacked specificity as to the actual injury that had occurred within the last fifteen days. (Compl. 14, 35.) The SAC appeals office does not have any record of this grievance being filed. (Ex. A, Decl. of R. Carter 2, 3.)
On January 11, 2007, Plaintiff mailed his December 2006 appeal to the director of inmate appeals. The office of inmate appeals does not have any record of this appeal being filed. ([Defs.'] Ex. B [in Supp. of Mot. to Dismiss], Decl. of T. Emigh 2.)
On either February 25, 2007, or March 1, 2007, Plaintiff wrote the Office of the Ombudsman regarding the cheese crackers. (Compl. 15.) On March 29, 2007, the Ombudsman responded to Plaintiff, noting that he had not yet completed the administrative grievance process and noted that his medical needs were being met. (Compl. 16, 39.) The Ombudsman also responded that although Plaintiff was not on a special diet, cheese crackers were available to him. Id.
Plaintiff's complaint alleges that defendant Borges was deliberately indifferent to plaintiff's medical needs by failing to prescribe a special diet for plaintiff, that defendant O'Brien violated plaintiff's due process rights by failing to process his inmate appeals complaining of inadequate medical care, and that defendant Grannis violated plaintiff's due process rights by failing to take any action after plaintiff told him that defendant O'Brien would not process his inmate appeals.*fn2 Compl. at 18 (claims 3 and 4).
II. Defendants' Motion to Dismiss for Failure to Exhaust
Defendantsmove pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss plaintiff's complaint for failure to exhaust. Defendants argue that plaintiff's complaint should be dismissed because plaintiff did not successfully file an inmate grievance at any level of review on his deliberate indifference claim or his due process claim prior to filing this action. Defs.' P. & A. at 4. In support of their motion to dismiss, defendants submit (1) the declaration of R. Carter, an Appeals Coordinator at SAC, indicating that grievances that are "screened out" are returned to the inmate and are not maintained by the Appeals Coordinator, and stating that there are no records of any grievances filed by plaintiff with regard to the claims in his complaint, and (2) the declaration of T. Emigh, the Assistant Chief of Inmate Appeals Branch in Sacramento, California ("IAB"), which receives all inmate appeals submitted to the third or highest level of review, indicating that no appeals submitted by plaintiff were accepted for review with the IAB concerning the claims in his complaint. Defs.' Exhs. A & B in Supp. of Mot. to Dism.
In his opposition to the motion, plaintiff "concede[s] that he did not exhaust his administrative remedies," but argues that his failure to exhaust should be excused because defendants obstructed his ability to exhaust by issuing "numerous bogus denials" of his appeals.*fn3
Pl.'s Decl. in Opp'n to Defs.' Mot. to Dism. ("Pl.'s Decl.") at 2; Pl.'s P. & A. in Supp. of Opp'n
("Pl.'s P. & A.") at 2, 13, 14.*fn4 In support of his opposition to defendants' motion to dismiss, plaintiff submits some of the same documents submitted with his complaint, as well as (1) a February 21, 2007 letter from the IAB to plaintiff informing plaintiff of the proper appeal process (Exh. D); (2) a copy of a response to a grievance submitted by plaintiff after the commencement of this action (Exh. F); (3) a copy of plaintiff's appeal history, listing grievances received in 2003 and a grievance submitted on July 9, 2007, after the commencement of this action (Exh. G); (4) a copy of a grievance submitted by plaintiff after the commencement of this action (Exh. H); (5) a list of the status of various appeals by plaintiff, prepared and signed by the appeals coordinator (relating to an appeal plaintiff submitted after the commencement of this action) (Exh. I); and (6) a copy of a director's level decision issued to plaintiff in an unrelated matter (Exh. J).*fn5
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[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." 42 U.S.C. § 1997e(a). This requirement is mandatory and unequivocal. Booth v. Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) ("Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to suit." (citation omitted)). A prisoner seeking leave to proceed in forma pauperis in an action challenging the conditions of his confinement brings an action for purposes of 42 U.S.C. § 1997e when he submits his complaint to the court. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Therefore, a prisoner must exhaust available administrative remedies before filing any papers in federal court and is not entitled to a stay of judicial proceedings in order to exhaust. Id. at 1051; McKinney, 311 F.3d 1198.
The United States Supreme Court stated in Jones v. Bock, 549 U.S. 199, 215-16 (2007), that failure to exhaust under the PLRA is an affirmative defense and that if the affirmative defense can be decided on the complaint alone, a ...