ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. Defendants have filed a motion to dismiss in which defendants assert plaintiff failed to exhaust administrative remedies with respect to most of his claims prior to filing suit. Defendants also have filed a motion for summary judgment.
A motion to dismiss for failure to exhaust administrative remedies prior to filing
suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. 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. at 1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Id.
The exhaustion requirement is rooted in the Prison Litigation Reform Act, which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title,... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). California Department of Corrections and Rehabilitation (CDCR ) regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a prisoner has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All steps must be completed before a civil rights action is filed, unless a plaintiff demonstrates a step is unavailable to him; exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119.
In his amended complaint filed on April 30, 2007, plaintiff alleges he was subjected to cruel and usual punishment in violation of the Eighth Amendment by Warden Runnels and Dr. James, who are or were both employees at the High Desert State Prison (HDSP) at the time. Plaintiff alleges defendant Runnels subjected plaintiff to seven back to back lockdowns between the months of July 2000 and June 2005, which resulted in exacerbation of plaintiff's hypertension due to a lack of exercise. Am. Compl. ¶¶ 6-13. Plaintiff alleges Dr. James acted with deliberate indifference to plaintiff's medical needs by prescribing the wrong medications for his hypertension and denying plaintiff access to the ideal dietary meals for a hypertension patient. Id. ¶¶ 18-22.
Defendants attach evidence to their motion to dismiss indicating plaintiff did not complete the inmate grievance process with respect to his claims against defendant James prior to filing suit. See Decl. of T. Robertson; Decl. of Tom Emigh. In response, plaintiff appears to assert that a grievance he initiated in January 2007 served to exhaust administrative remedies as to James. Opp'n at 3-5. However, as indicated above, plaintiff needed to have exhausted administrative remedies prior to bringing suit to satisfy 42 U.S.C. § 1997e(a). Because plaintiff originally initiated this action in 2005 and he now fails to point to anything else suggesting he exhausted administrative remedies with respect to his claims against defendant James prior to filing suit, plaintiff's claims against James should be dismissed.
Defendants point to evidence indicating plaintiff did not exhaust administrative remedies with respect to his claims against defendant Runnels arising from six prison lockdowns occurring between July 14, 2000 and March 9, 2004. See Memo. P. & A. In Supp. Defs.' Mot. For Summ. J. (MSJ) at 5:3-28 & Exs. A-F. Plaintiff asserts he did exhaust his administrative remedies.
Plaintiff argues that a grievance he submitted on January 13, 2005 served to exhaust administrative remedies with respect to all of his claims against defendant Runnels. Opp'n at 2. Defendants point out that prison grievances must generally be filed within fifteen days of the event grieved. Cal. Code Regs. tit 15, § 3084.6(c). The Supreme Court has held that an agency's deadlines generally must be complied with for proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Plaintiff fails to point to anything suggesting how a grievance submitted in January 2005 could have exhausted administrative remedies with respect to anything occurring before December 2004, considering CDCR's fifteen day rule. Plaintiff also does not argue the court should not, for some reason, recognize the fifteen day rule as a bar to his claims. For these reasons, any claims arising solely from discreet events occurring between July 14, 2000 and March 9, 2004 must be dismissed. As discussed below, however, any of plaintiff's allegations ...