The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED
Plaintiff Carlos Hendon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is Defendants' motion to dismiss based on Plaintiff's failure to properly exhaust all of his administrative remedies prior to filing suit. (Doc. #10.) This action is proceeding on Plaintiff's complaint filed on January 28, 2008 against Defendants Calderon, Duran, Reed, Jordan, and Bowan ("Defendants") for the alleged violation of Plaintiff's right to be free from cruel and unusual punishment under the Eighth Amendment. (Doc. #1.) Defendants filed their motion to dismiss on March 2, 2009. (Doc. #10.) Plaintiff filed an opposition on May 7, 2009. (Doc. #19.) Defendants filed a reply to Plaintiff's opposition on May 11, 2009. (Doc. #20.)For the reasons stated below, the Court finds the Plaintiff failed to properly exhaust his administrative remedies as required by the Prison Litigation Reform Act and recommends that Defendants' motion to dismiss be granted.
I. Defendants' Motion to Dismiss
In his complaint, Plaintiff alleges that from June 5, 2002 through March 27, 2003, Plaintiff was almost constantly under the effects of mace used by Defendants on other inmates that were housed near Plaintiff. (Compl. 4.) Plaintiff alleges that the use of mace on the other inmates was a common, and often unnecessary, practice that was a source of amusement for Defendants. (Compl. 6.) Plaintiff also alleges that Defendants failed to provide medical treatment to remedy the harmful effects of mace. (Compl. 9.)
Defendants argue in their motion to dismiss that they are entitled to dismissal because Plaintiff did not fully exhaust the administrative remedies with respect to his section 1983 claims.*fn1 (Mem. of Points and Authorities in Supp. of Mot. to Dismiss 4:17-7:13.) Defendants contend that the only administrative grievance filed by Plaintiff pertaining to the events described in his complaint was filed on October 24, 2003. (Mot. to Dismiss 6:24-25.) Defendants point out that Plaintiff's October 24, 2003 administrative grievance was untimely because under Title 15, California Code of Regulations, section 3084.6(c), Plaintiff was required to submit his grievance within fifteen days of the event being appealed. (Mot. to Dismiss, 6:26-7:1.) Nonetheless, Plaintiff's October 24 administrative grievance was reviewed and denied despite its untimeliness because it was construed as challenging an institutional policy. (Mot. to Dismiss 7:2-3.) Plaintiff did not appeal the denial of his grievance to the third level or the Director's level of review. (Mot. to Dismiss 7:3-4.)
Plaintiff had filed a previous lawsuit regarding the events in this action that was dismissed without prejudice because of Plaintiff's failure to exhaust his administrative remedies. (Mot. to Dismiss 7:5-6.) Plaintiff attempted to remedy the dismissal by filing two administrative grievances in November 2007. (Mot. to Dismiss 7:6-8.) Plaintiff's grievances were screened out at the first level of review because by that time, Plaintiff's grievances regarding the use of mace in 2002 and 2003 were untimely. (Mot. to Dismiss 7:8-10.) Thus, Defendants argue, Plaintiff failed to properly exhaust his administrative remedies prior to filing suit in this action.
Plaintiff, in opposition, alleges that he has "repeatedly attempted to appeal the issue raised in this lawsuit. However, his appeals have been repeatedly screened out by the CCI Appeals Office."
(Opp'n to Defs. ' Mot. to Dismiss 1.) Plaintiff's factual allegations regarding his attempts at exhaustion largely mirrors Defendants'. Plaintiff alleges that: he attempted to exhaust his claims by filing, in November 5, 2007 and November 27, 2007, two administrative appeals at the second level of review regarding the 2002 and 2003 use of mace. Also along with Plaintiffs' appeals, he filed handwritten notes, explaining why his appeals was filed beyond the 15 day time limit. In December 2007, Plaintiff received a memorandum denying both of his appeals which stated "the appeal exceeds the 15 day time limit. Do not resubmit appeal." This statement unambiguously told Plaintiff that an appeal was futile, even prohibited. (Opp'n 2.)
A. Plaintiff's Evidentiary Objections
As an initial matter, Plaintiff moves to strike the supporting declarations in Defendants' motion to dismiss pursuant to Federal Rules of Evidence 901, 902, 1003, and 1005.*fn2 (Opp'n to Defs. ' Mot. to Dismiss 3.) Plaintiff argues:
The declarations that defendants use to support their motion cannot be authenticated because none of the declarations contained personal knowledge statement [sic] nor show the person making the statement was competent to testify to the facts contained in the statement. Accordingly, because Defendants['] declarations is [sic] (1) unsworn and (2) unauthenticated, Plaintiff moves to strike Defendants['] declarations. Should the court decide not to do so, Plaintiff suggests that it should be given little or no weight.
Plaintiff's contention that the supporting declarations in Defendants' motion to dismiss are unauthenticated is groundless. The supporting declarations are signed by ...