The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION RE MOTION TO DISMISS (DOC 47)
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1). Pending before the Court is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). Plaintiff has opposed the motion.*fn1
This action proceeds on the April 11, 2006, First Amended Complaint. Plaintiff, an inmate in the custody of the California Department of Corrections at CSP Solano, brings this civil rights action against defendant Correctional Officer Mendez, an employee of the California Department of Corrections and Rehabilitation at Corcoran State Prison.
The claims in this lawsuit stem from a disturbance on Tuesday, September 28, 2004 at CSP Corcoran B yard. As Plaintiff was approaching his cell, he was attacked by two inmates, who began striking Plaintiff in the face. Plaintiff assumed a defensive posture when two other inmates joined the attack on Plaintiff. Defendant Mendez, the Control Booth Officer, fired eight wooden blocks from a 40mm baton launcher. Plaintiff alleges that while he was on the ground in a prone position, "numerous shots continued to ring out and ricochet, one directly striking petitioner's left hand, ripping it open to the bone and destroying the knuckle."
At the Institutional Classification Committee review in Administrative Segregation, Capt. Miller "clearly identify pet. As protecting himself from getting smashed and to avoid great bodily injury or harm and in the furtherance of justice any further collection of evidence became unnecessary and the Rules Violation Report's specific acts of mutual combat is removed from pet. 'C' central file or never placed there." Plaintiff alleges that all inmates remained confined to quarters for one day. Plaintiff was placed in Administrative Segregation on the ground that he was a threat to the safety of others.
Defendant seeks to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b) on the ground that Plaintiff has failed to exhaust his available administrative remedies prior to filing suit. 42 U.S.C. 1997e(a). The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution. . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Section 7 of the Prison Litigation Reform Act was amended to read as follows:
(a) APPLICABILITY OF ADMINISTRATIVE REMEDIES. No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (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). In Booth v. Churner,532 U.S. 731 (2001). The Supreme Court, in addressing the question of whether a prisoner need exhaust available remedies when monetary damages are unavailable, held that "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Id. at 1821. In order to bring his claim in federal court, plaintiff must completely exhaust his available administrative remedies. In California, there are four levels of review - informal level, first formal level, second formal level, and third formal level. The third formal level constitutes the Director's decision on appeal. Cal. Code Regs. Tit. 15, § 3084.5(e)(2).
The event that gives rise to this lawsuit occurred on September 28, 2004. In order to survive Defendant's motion, Plaintiff must show that he exhausted his available administrative remedies by filing ain inmate grievance regarding Defendant's conduct on that date and pursuing it to the final level of review. Defendant supports his motion with the declarations of J. Jones and N. Grannis.*fn2
J. Jones is the Appeals Coordinator at CSP Corcoran, and as the custodian of records, can verify if an inmate at Corcoran has submitted a formal level inmate grievance (Inmate Appeal Form 602) on a particular issue. Jones Decl., ¶¶ 1,2. Regarding Plaintiff, Jones declares that the following:
I have conducted a search of the appeals file to see whether it contains appeals from inmate Anton concerning the allegations in Plaintiff's complaint. Inmate Anton filed a number of appeals during his incarceration at CSP. A true and correct copy of the log reflecting those appeals is attached as Exhibit A. Those appeals were filed by Inmate Anton prior to the events alleged in ...