FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff alleges that defendants' failure to ensure that he receive proper portions of food while held in solitary confinement at High Desert State Prison violated his rights under the Eighth Amendment.*fn1 Before the court is a motion to dismiss filed on behalf of defendants Felker, Low and Smith in which the defendants argue that plaintiff failed to exhaust his administrative remedies prior to filing suit. Defendant Thompson has filed a notice indicating that he joins in the motion to dismiss.
Defendants contend that plaintiff submitted his administrative grievance to the informal and first level of institutional review, but did not seek review at the second level and director's level. On January 18, 2007, plaintiff filed his grievance concerning the portions of food he was being served while held in solitary confinement (Log. No. HDSP-S-07-0913). (Mot. to Dismiss at 3.) That grievance was partially granted at the informal level. (Id.) Plaintiff then appealed to the first level where the grievance was partially granted in March 2007. (Id.) According to defendants, plaintiff did not seek review at the second level and director's level. (Id. at 3-4.) In this regard, defendants have submitted a declaration by M. Ouye, a Correctional Case Records Administrator in Sacramento and custodian of inmate central files for the California Department of Corrections and Rehabilitation. (Id., Ex. A at 1.) Ouye has attached to his declaration a copy of plaintiff's inmate grievance (Log No. HDSP-S-07-0913), dated January 18, 2007. (Id., Ex. A, Attach. 1.) The form indicates that plaintiff submitted his first level appeal on February 25, 2007, and that staff completed their review on March 10, 2007. (Id.) However, the section of the form for requesting review at the second level is blank. (Id.)
Defendants have also submitted the declaration of N. Grannis, Chief of the Inmate Appeals Branch. (Id., Ex. B.) Declarant Grannis states that the Inmate Appeals Branch maintains records of inmate grievances received and accepted for review at the director's level. (Id., Ex. B at 1.) According to Grannis, there is no record that plaintiff's grievance (Log No. HDSP-S-07-0913) was accepted for review at the director's level. (Id. at 2.)
II. Plaintiff's Opposition
Plaintiff argues that the responses by prison officials to his grievance were untimely and that the appeals coordinator committed fraud to prevent plaintiff from proceeding to the second level of review. In his own declaration signed under penalty of perjury, plaintiff explains that on January 18, 2007, he submitted his grievance regarding the food portions he was receiving in solitary confinement for informal review. Although the appeal form with the informal level response was returned to him undated, plaintiff contends that he received the appeal form on February 25, 2007, several days beyond the ten day requirement for providing an informal response. (Opp'n at 1-2.) On February 25, 2007, plaintiff submitted the appeal form for first level review. (Id. at 2.) According to plaintiff, the form was again returned to him undated. Contrary to defendants' contention, plaintiff asserts that he received that appeal form on May 6, 2007, the same day he submitted the appeal form for a second level review. (Id. at 2-3.) According to plaintiff, the appeals coordinator returned the form back to him with a notation that he had exceeded the time limit for seeking second level review. (Id.) In addition, plaintiff contends, the form for the first time reflected a "4/4/07" date in the section of the form headed "Returned Date to Inmate." (Id. at 3.) Plaintiff argues that the manner in which his appeals were processed violates "the 5th and 14th Amendment of Due Process and PLRA... and right to access to the courts."*fn2
Based on these facts, plaintiff contends that he exhausted the administrative remedies that were available to him before bringing suit. (Pl's. P&A (Doc. No. 14) at 8.) Plaintiff argues that when his grievance was improperly "screened out" at the second level, he was "hinder[ed]... from moving forward with the administrative appeal process...." (Id. at 9.) Because it is California Department of Corrections and Rehabilitation policy that a "screened out" grievance cannot be pursued any further, plaintiff argues that he was prevented from fully exhausting the appeals process. (Id. at 11.) Plaintiff also argues that because his grievances were partially granted at the informal and first level, the exhaustion requirement was satisfied in any event. Plaintiff contends without citation to authority that, "[t]he federal court has ruled that in a 1983 civil suit a prisoner has fully exhausted his or her administrative remedies when his or her appeal/grievance has been 'partially granted.'"*fn3 (Opp'n at 2.)
The remainder of plaintiff's opposition concerns the merits of his claims. In this regard, plaintiff has attached to his opposition copies of an inmate grievances that he submitted on August 28, 2007, November 8, 2007, and September 20, 2007. (Pl.'s P&A, Ex.s B, E, F.) Because, those administrative grievances were submitted after the complaint in this action was filed, they are not relevant to the court's consideration of the motion to dismiss for failure to exhaust administrative remedies.
In their reply defendants address the discrepancies between the various inmate appeal forms submitted to the court by the parties. According to defendants, the inmate appeal form that was attached to defendants' motion to dismiss was obtained from plaintiff's central file. (Reply at 2.) They represent that plaintiff's copy of the appeal form came from the prison appeals office. (Id.) Defendants have submitted to the court a declaration from Correctional Counselor Jackson who explains that his "4/04/07 LCR" notation on the appeal form indicates that the first-level response was logged, copied, and routed that day. (Reply, Ex. A (Jackson Decl.), at 2.) According to Jackson, this means that a copy of the response was placed in the mail for pick up and delivery to the inmate on that date. (Id.) It is Counselor Jackson's experience that "mail from Inmate Appeals was picked up and distributed to inmates within 24 hours." (Id.) Based on Counselor Jackson's declaration, defendants argue that plaintiff received the response to his administrative grievance at the first level on April 4, 2007. (Reply at 2.)
Defendants further argue that plaintiff's "available administrative remedies did not end when his appeal was screened out as untimely at the second level" because he could have re-submitted the appeal to the appeals coordinator. (Reply at 3.) Counselor Jackson states in his declaration, that if the appeal was resubmitted with an explanation, "the appeals coordinator had discretion to accept the request and assign it for processing at the second-level." (Jackson Decl. at 3.)
As to plaintiff's grievances submitted in August of 2007, and thereafter, defendants point out that those grievances were all submitted after plaintiff filed the complaint in this action on June 11, 2007. (Reply at 2.) Defendants note that exhaustion of administrative ...