FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. In the original complaint, filed initially in the Northern District of California on October 11, 2006, plaintiff claims he was refused medical treatment by various defendants. The case was transferred to this district on October 27, 2006. On May 8, 2008, plaintiff filed an amended complaint naming only Cunningham as a defendant.
Defendant Cunningham has filed a motion to dismiss, arguing that plaintiff has failed to exhaust his administrative remedies. Plaintiff has filed an opposition to the motion, and defendant has filed a reply. In addition, plaintiff has filed a document entitled "Plaintiff's Second Motion In Support of Opposition To Defendant's Motion To Dismiss."
Plaintiff contends that Defendant Cunningham, a nurse at CSP-Sacramento (CSPS), failed to treat his medical condition of priapism. Amended Complaint (Am. Compl.), ¶ IV. He alleges that defendant refused to provide him oxygen therapy or pain medication and would not allow him to see a doctor. Id. He further alleges that when he tried to visit the medical facility, defendant would have correctional officers escort plaintiff back to his cell. Id.
II. The Requirements of Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (PLRA) provides that "no action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies are exhausted." 42 U.S.C. § 1997e(a). To fulfill the exhaustion requirement, a grievance must have made prison officials aware of the claims a plaintiff has included within the complaint. Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case"); Brown v. Sikes, 212 F.3d 1205, 1209 (11th Cir. 2000) (§ 1997e(a) requires that a prisoner provide as much relevant information as he reasonably can in the administrative grievance process).
The PLRA mandates proper exhaustion as a prerequisite to a legal action. Booth v. Churner, 532 U.S. 731, 741 (2001). "Proper exhaustion demands compliance with an agency's deadlines and other critical rules." Woodford v. Ngo, 548 U.S. 81, 90 (2006). "The administrative process itself would filter out some frivolous claims and foster better-prepared litigation once a dispute did move to the courtroom even absent of factfinding." Booth, 532 U.S. at 737. "'Such administrative remedies as are available' naturally requires a prisoner to exhaust the grievance procedures offered, whether or not the possible responses cover the specific relief the prisoner demands." Id. at 738 (citation omitted).
California prison regulations provide administrative procedures in the form of one informal and three formal levels of review to address an inmate's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a plaintiff 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. The grievance process must be completed before the inmate files suit; 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).
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). Defendant bears the burden of proving plaintiff's failure to exhaust. Id. at 1119. In deciding a motion for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. If the court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Id. at 1120.
III. Plaintiff's Use of The Grievance Process
Plaintiff filed his inmate appeal, identified as SAC 03-01592, on May 5, 2003.
Am. Compl., Exhibit A at 14.*fn1 The Inmate Appeals Branch subsequently asked plaintiff to provide more specific information, which he did on May 29, 2003. In that addendum to his appeal, plaintiff complained that "the medical staff... have refused to treat me." Id. at 15. He claimed that Nurse Cunningham acted contrary to her job description and did not perform her duties in a manner consistent with the California Penal Code and says that he was "threatened at the clinic." Id. Plaintiff also stated he was suffering from physical pain and mental anguish as a result of the alleged lack of medical treatment. Id.
According to the declaration of R. Carter, the appeals coordinator at CSPS, plaintiff's appeal was partially granted on August 18, 2003. Mot., Exhibit B, ¶ 5. However, the record does not contain documentation of the partial grant, nor does defendant's motion explain the grounds for the partial grant or the relief, if any, that plaintiff received. Defendant does submit a declaration from N. Grannis, the current Chief of the CDCR Inmate Appeals Branch, that "[t]here is no record that [plaintiff's] appeal was ever received at the Director's level." Mot., Exhibit A, ¶ 9. Grannis concludes for this reason alone that the appeal "was not exhausted." Id.
Plaintiff claims he did exhaust all available administrative remedies and that defendant has not met her burden of proving a failure to exhaust. He states, in an undated typed copy of a complaint he attaches as an exhibit to the amended complaint of record, that he "filed an inmate appeal regarding this matter and it was subsequently denied at each level." Am. Compl., Exhibit A at 16-22. However, in his opposition, ...