ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff alleges that the defendants' failure to adjust his handcuffs, which had been placed too tightly upon him, over a five hour period violated his rights under the Eighth Amendment. Plaintiff seeks monetary damages and injunctive relief.
Pending before the court is defendants' motion to dismiss filed on February 10, 2010. Therein, defendants argue that plaintiff failed to exhaust his available administrative remedies prior to filing this action. Plaintiff has opposed the motion, and defendants have filed a reply. For the reasons set forth below, the court will recommend that defendants' motion to dismiss be denied.
DEFENDANTS' MOTION TO DISMISS
Defendants argue that plaintiff submitted his administrative grievance regarding the overly tight handcuffs to the first level of administrative review, but failed to appeal an adverse decision on that grievance to the second and third levels of review. (See Mot. to Dismiss at 2.) In support of their argument, defendants have provided the court with the declarations of D. Foston, Chief of the Inmate Appeals Branch; G. Duran, Appeals Coordinator at Pleasant Valley State Prison; and A. Pereira, Appeals Coordinator at California State Prison, Sacramento. Each declarant states that they have conducted a grievance search in their respective databases and were unable to find any record of plaintiff's initial grievance (Log. No. SAC-08-00705) being appealed and decided at the second or third levels of review. (A. Pereira Decl. ¶5; D. Foston Decl. ¶¶ 3-5; G. Duran Decl. ¶ 5.)
II. Plaintiff's Opposition
In opposition to the pending motion to dismiss, plaintiff contends that he tried to exhaust his administrative remedies but his attempt at doing so was hindered by the misdirection and inaction of prison officials. Plaintiff explains that on March 12, 2008, he filed his grievance regarding the tight handcuffs at the first level of review. (Opp'n at 1.) Plaintiff notes that he did not receive a decision until August 1, 2008, 142 days after filing his grievance. (Id. at 2.) On the inmate appeal form that was eventually returned to him by prison officials, the second level review box was checked and signed indicating that the appeal had been denied at the second level of review, albeit with lines crossing out those entries to varying degrees. (Id.) Plaintiff argues that upon receiving this inmate appeal form following the lengthy delay, he was thus under the impression that his appeal had been fully reviewed at the first and second levels. (Id.) Plaintiff argues that because officials misled him to believe that he had already completed the second level of review, he filed his next appeal directly to the third level of review on August 6, 2008. (Id. at 3.)
On October 16, 2008, plaintiff received a third level of review response, explaining that his appeal was premature because he had not submitted an appeal to the second level of review. (Id.) Plaintiff contends that he took heed of this advice and filed his appeal at the second level of review on November 12, 2008. (Id.) However, according to plaintiff, he did not receive a response to his appeal thereafter, despite his repeated inquiries into its status. (See id. 3-4.) Plaintiff asserts that it is common for prison officials to delay, disregard, or even lose inmate grievances and appeals, suggesting that this is what occurred with respect to his appeal submitted to the second level of review. (Id. at 4, Ex. C.)
Finally, plaintiff contends that his placement in administrative confinement during the period of time in question added to the difficulty of exhausting his administrative remedies. Specifically, plaintiff argues that prison officials granted him access to the law library only six times during the 289 days he spent in administrative segregation. (Id. at 6.) Plaintiff also argues that he did not have access to his personal property while in administrative segregation. (Id.) According to plaintiff, he was thus unable to conduct sufficient research on the procedure to follow in filing a second level appeal. (Id. at 7.)
In reply, defendants argue that plaintiff's argument fails to adequately explain why he failed to exhaust his available administrative remedies. While conceding that there was a delay in processing plaintiff's first level appeal, defendants argue that prison officials never told plaintiff that his appeal at the second level would be denied due to untimeliness. (Reply at 3.) According to defendants, just the opposite was true: defendants advised plaintiff on two different occasions that he should file an appeal at the second level of review. (Id.)
Defendants also challenge plaintiff's argument that he was misled into believing that a second level review had already occurred. (Id.) Defendants argue that any belief plaintiff had that his appeal form had completed the second level of review was unreasonable. (See id.) Defendants emphasize that the marks made in the second level review box were clearly made in error and were conspicuously crossed out. (Id. at 3-4.)
Next, defendants contest plaintiff's claim that he filed a second level appeal on November 12, 2008. (Id. at 4.) Defendants assert that they have no record of this appeal, nor do they have any record of plaintiff's alleged inquires into the appeal. (Id.) Moreover, defendants argue that plaintiff has not submitted any evidence to the contrary. (Id.)
Finally, defendants assert that plaintiff's limited access to the law library and to his personal property did not impede his ability to exhaust his remedies. (Id.) In support of their argument, defendants note that while plaintiff was confined in administrative segregation, he filed and exhausted a separate grievance. (Id.) According to defendants, the exhaustion of this unrelated grievance ...