ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Pending before the court is plaintiff's August 1, 2008 motion for summary judgment as well as defendants' August 13, 2008 unenumerated Rule 12(b) motion to dismiss plaintiff's November 28, 2007 amended complaint for failure to exhaust administrative remedies prior to filing suit. Also pending and addressed herein is plaintiff's November 7, 2008 motion to strike defendants' motion to dismiss. For the reasons stated below, the court denies plaintiff's motion for summary judgment and motion to strike, and recommends that defendants' motion to dismiss be granted.
I. Plaintiff's Motion for Summary Judgment and Motion to Strike
On August 1, 2008, plaintiff filed a motion for summary judgment seeking judgment in his favor. Plaintiff also filed a request for expedited consideration of his motion for summary judgment on the ground that his health is rapidly deteriorating, to which defendants opposed. Plaintiff's motion is premature, as discovery has not yet begun, defendants have not yet filed an answer and the court has yet to issue a discovery and scheduling order. Thus, defendants have not been given an opportunity to discover any facts or information necessary in drafting an opposition. Thus, plaintiff's motion is denied as premature. Furthermore, defendants have filed a motion to dismiss, which is properly before the court. Accordingly, plaintiff's motion to strike the motion to dismiss on the ground that it is premature in light of plaintiff's pending motion for summary judgment, is also denied.
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 plaintiff's complaint should be dismissed because plaintiff failed to properly submit a grievance addressing his claims against defendants through the third level of review prior to filing this action. Plaintiff argues that defendants have failed to meet their burden of raising and proving the absence of exhaustion. For the reasons stated below, this court finds that plaintiff failed to properly exhaust his administrative remedies with respect to his claims and that defendants' motion to dismiss should therefore be granted.
A. Summary of Alleged Facts*fn1
At all times relevant to the Complaint, Plaintiff Duane Reed Moore (D-48543) was an inmate in the custody of the CDCR. At all times relevant to the Complaint, Defendants Moreno, Andreason, Wyant, Pinkerton, Khoury, Hubbard, Gyaami, Veal and Chambers were employees of the CDCR.
Moore alleges that Defendants are starving him to death and have been deliberately indifferent to his specific medical needs. (Compl. § IV, ¶¶ 1-2.) Moore has undergone a Billroth II-grastrectomy and a surgery for spinal infringement. (Id. ¶ 2.) Moore has also had his bowel surgically removed, which has resulted in his suffering from Dumping Syndrome. (Id.) Moore additionally suffers from Agent Orange Syndrome. (Id.) Due to his physical condition, Moore alleges that he requires a special diet and specialized medical care. (Id.) Moore alleges that Defendants Hubbard, Veal, and Andreason, although aware of his dietary and medical needs, failed to properly supervise prison medical staff to provide him with his specialized needs. (Id. ¶¶ 3-4.) Moore continues to allege that Dr. Andreason rejected numerous of his appeals for a specific diet and meal schedule. (Id. ¶ 4.) Moore also alleges that Defendant Khoury rejected his appeals, without conducting any sort of investigation or inquiry into the validity of his complaints. (Id. ¶ 5.) Moore further alleges that because of Defendant Khoury's actions, he has been starving to death, and has received inadequate food and medical care for over three years. (Id.)
From on or around February 1, 2004, through the present, Moore alleges that Defendants Gyaami, Pinkerton, and Chambers, have blocked his access to receive adequate amounts of food and refused to provide him with his prescribed diet. (Id. ¶¶ 6, 8.) Moore also alleges that during this same period of time, Defendants Wyant and Moreno blocked his access to a specialized, life-sustaining diet prescribed by medical staff. (Id. ¶ 7.) Specifically, Defendants Wyant and Moreno have prevented and continue to prevent Moore from leaving for chow (0600-0630) each day, as required to meet his need for six small meals per day. (Id.)
In his amended complaint, plaintiff alleges that he exhausted his administrative remedies with respect to his claims against defendants. Am. Compl. ("Compl.") at 2. Plaintiff alleges that on May 13, 2004, he submitted an inmate appeal requesting a special diet and meal schedule, consisting of six meals per day. Id. at 4; see also Pl.'s Oct. 3, 2006 Mot. for Prelim. Inj. ("Pl.'s MPI") at 18 (copy of May 13, 2004 request).*fn2 Plaintiff further alleges that this appeal was rejected by defendant Andreason on June 4, 2004, and again rejected by defendant Khoury, on August 31, 2004. Compl. at 4, 6; see also Pl.'s MPI at 23 (copy of June 4, 2004 First Level Response, partially granting May 13, 2004 appeal in that plaintiff would be referred to a dietician); id. at 24-25 (copy of August 31, 2004 Second Level Response, denying plaintiff's request to receive six complete meals per day).
Plaintiff also alleges he filed inmate appeals on or around February 24, 2006 and March 3, 2006, where he again complained of being deprived of a specialized diet, but that defendants ignored those appeals. Compl. at 8. Thereafter, on or about March 27, 2006, plaintiff submitted another appeal requesting a specialized diet. Id. at 4; see also Pl.'s MPI at 28-32 (copy of March 29, 2006 appeal). Plaintiff alleges that this appeal was rejected by defendant Andreason on April 21, 2006 and by defendant Khoury on June 21, 2006. Compl. at 4, 8; see also Pl.'s MPI at 33 (copy of April 21, 2006 First Level Response); id. at 34 (copy of June 21, 2006 Second Level Response, denying plaintiff's request for six complete meals per day).
Pursuant to the Prison Litigation Reform Act of 1995, "[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 failure to exhaust non-judicial administrative remedies as required by § 1997e(a) is not jurisdictional. Wyatt v. Terhune, 315 F.3d 1108, 1117 n.9 (9th Cir. 2003). Nor does § 1997e(a) require a plaintiff to plead exhaustion. Id. at 1119. Rather, "§ 1997e(a) creates a defense -- ...