FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983. He seeks damages and injunctive relief, alleging that defendants ordered the placement of additional beds at California State Prison-Centinela (CSP-Centinela) and that the resulting overcrowded conditions "increased the already existing threat to my life and well being." Second Am. Compl. at 4 (Docket No. 12). Defendants have filed a motion to dismiss.
I. Plaintiff's Allegations And Defendants' Grounds For Dismissal
Plaintiff alleges that both defendants -- the Governor of California and the Director of the California Department of Corrections and Rehabilitation (CDCR) -- are "responsible and accountable for... the overcrowding of [California's] prisons system." Id. The overcrowding, according to the complaint, "specifically affects me on B-Facility at Centinela Prison." Id. Plaintiff avers that defendants, acting in their "professional and/or political positions," ordered the introduction of additional beds*fn1 into an already overcrowded facility, which in turn "hinders my mental, physical, and emotional well being, and does put my life at great risk, greater than previously." Id. at 4, 11. He alleges that the overcrowding has increased the danger of violence by other inmates; reduced or interrupted medical care; hindered the provision of dietary needs; limited the space for physical activity; and caused an increase in "stress, tension, frustration [and] aggravation." Id. at 4-5, 12. He seeks compensatory and punitive damages and injunctive relief in the form of "immediate release" from prison. Id. at 3.
Defendants seek dismissal on several alternative grounds, arguing that venue in this district is inappropriate, and that plaintiff has failed to exhaust administrative remedies. Defendants also argue that plaintiff has failed to state a claim on which relief can be granted, and the court lacks jurisdiction to grant any injunctive relief.
Defendants object that venue is improper because CSP-Centinela is in Imperial County, which is in the geographical jurisdiction of the Southern District of California. Under the federal venue statute, however, venue is proper in a judicial district where any defendant may be found, if all defendants reside in the same state. 28 U.S.C. § 1391(b)(1). Both defendants have been sued in their capacities as executives in the state government of California; the offending act, according to plaintiff, was an order for the placement of additional beds at CSPCentinela, which in turn created unconstitutional conditions of confinement. Taking plaintiff's allegation as true, such an order could only reasonably have emanated from the defendants' executive offices in Sacramento, which is in the Eastern District of California. Therefore venue is proper.
Defendants argue that plaintiff has failed to exhaust his administrative remedies.
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. See 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 (PLRA), 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). CDCR regulations provide administrative procedures at one informal and three formal levels of review to address an inmate's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Generally, a prisoner exhausts his administrative remedies when he receives a "Director's Level Decision," or third formal level of review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied sub nom. Alameida v. Wyatt, 540 U. S. 810 (2003).
In support of their exhaustion argument, defendants present the affidavit of D. Degeus, the Appeals Coordinator at CSP-Centinela. See Decl. of D. Degeus (docket no. 26-3). Degeus states that he checked the appropriate records at Centinela and found that plaintiff did not file an inmate grievance with respect to an increase of the prisoner population at Centinela. Id. ¶ 6. Defendants also present the affidavit of N. Grannis, Chief of the Inmate Appeals Branch (IAB) of the CDCR. See Decl. of N. Grannis (docket no. 26-4). Grannis avers that prior to the filing of this lawsuit, plaintiff submitted no third-level appeal concerning inmate overcrowding at Centinela. Id. ¶¶ 9-13.
With his opposition, plaintiff submits documents showing that in 2009 he tried to file a grievance about the placement of the E-beds at CSP-Centinela. See Opp'n (docket no. 36), Ex. B. A letter from the appeals coordinator at Centinela informed plaintiff that he did not file his appeal within the time constraints required under "CCR 3084.6(c)." Id. at 23.*fn2 Under CDCR regulations, an inmate must file his prisoner grievance within fifteen days of the events grieved. Cal. Admin. Code tit. 15, § 3084.6(c). The E-beds arrived in 2007, so any grievance directly challenging the introduction of the E-beds in 2009 would be untimely. Failure to exhaust available administrative remedies by filing a late grievance generally requires dismissal. Woodford v. Ngo, 548 U.S. 81 (2006).
Given the nature of plaintiff's claim -- i.e., that the E-beds created an ongoing overcrowded condition -- it is arguable that plaintiff still had a timely complaint in April 2009, when he first filed a grievance concerning the overcrowded conditions. However, a prisoner must complete all available administrative steps before he files a civil rights action; exhaustion during the pendency of the litigation will not save an action from dismissal. See McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). This lawsuit was filed on October 26, 2007. It appears, then, that plaintiff came to this court seeking relief from overcrowded conditions well before he sought relief within the CDCR's established procedures. Therefore, this case should be dismissed unless plaintiff demonstrates the appeals process was somehow unavailable to him. See Marella v. Terhune, 568 F.3d 1024 (9th Cir. 2009).
Plaintiff argues he is excused from fully exhausting his claims here because "there is no administrative process available to address the issue of overcrowding." Opp'n at 3. The term "available" stems directly from the PLRA, which bars an action "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). As long as a prison's administrative tribunal has the authority to take some kind of action in response to the inmate's complaint, administrative review is "available" and exhaustion under the PLRA is required. Booth v. Churner, 532 U.S. 731 (2001). However, "[t]he obligation to exhaust 'available' remedies persists as long as some remedy remains 'available.' Once that is no longer the case, then there are no 'remedies... available,' and the prisoner need not further pursue the grievance." Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). As proof of the unavailability of remedies here, plaintiff submits a statement written by an appeals coordinator at Centinela in response to another inmate's grievance. That inmate complained about medical care he had received and partially blamed the inadequate treatment on overcrowding at Centinela. See Opp'n, Ex. A at 16. The prison partially granted the inmate's appeal of his medical treatment, but the appeals coordinator also explained that "[i]t is beyond the scope of the appeals process to address the population census of the ...