FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. He alleges that during a February 2004 classification hearing, defendant Mandeville ignored his complaints about a prior improper disciplinary hearing and directed him transferred to Pelican Bay State Prison in retaliation for those complaints and because he was "tired of playing games with the Northern Hispanics." Plaintiff also complains about the manner in which a disciplinary hearing in October 2003 was conducted; however, the court did not order the complaint served on the individuals who, allegedly, acted improperly in connection with that hearing. See Order filed June 4, 2008 (Docket No. 4).
Defendant Mandeville filed a first motion to dismiss, arguing that the complaint failed to state a claim upon which relief can be granted, and that plaintiff failed to exhaust his administrative remedies. See Motion to Dismiss, filed Dec. 3, 2008 (MTD I) (Docket No. 14). Defendant's motion was granted in part and denied in part. Order filed Sept. 29, 2009 (Docket No. 30).
In denying defendant's motion to the extent it relied on the argument that plaintiff failed to exhaust his administrative remedies, the court found that defendant did not meet "his burden of establishing plaintiff's failure to exhaust his administrative remedies with respect to the claim against him" because he did "not present a reliable record of plaintiff's utilization of the grievance process." Id. Thereafter, defendant amended and renewed his motion to dismiss on the basis that plaintiff has failed to exhaust his administrative remedies. Mot. to Dismiss filed Oct. 30, 2009 (MTD II) (Docket No. 31). Plaintiff has opposed the motion. Defendant has not filed a reply.
I. Exhaustion Requirements Under The Prison Litigation Reform Act
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 as are available are exhausted." 42 U.S.C. § 1997e(a). "Conditions of confinement" subject to exhaustion have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prisons." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the exhaustion requirement, a grievance must be filed within fifteen working days of "any departmental decision, action, condition, or policy which [prisoners] can demonstrate as having an adverse effect upon their welfare," Cal. Code § 3084.6; and, it must alert prison officials to the claims plaintiffs have included in 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 a prisoner to provide as much relevant information as he reasonably can in the administrative grievance process).
Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules. . . ." Woodford v. Ngo, 548 U.S. 81, 90 (2006). An inmate is required to exhaust those remedies that are available; for a remedy to be "available," there must be the "possibility of some relief. . . ." Booth, 532 U.S. at 738.
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. 2002). In deciding a motion to dismiss 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. Defendants bear the burden of proving plaintiff's failure to exhaust. Id. at 1119. To bear this burden: a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case,. . . . With regard to the latter category of evidence, information provided the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, "available."
II. Exhaustion Requirements Relating To Claims Arising From The February 24, 2004 Classification Committee Meeting
The issue in the pending motion is whether plaintiff has exhausted his administrative remedies for claims arising from the February 24, 2004 classification committee meeting, where defendant Mandeville allegedly said, "[Plaintiff] would find no sympathy from [defendant] or his staff, that [defendant and his staff] were tired of playing games with the Northern Hispanics as a whole and would continue to have them prosecuted and shipped to different prisons." Compl. filed Jan. 11, 2008 (Docket No. 1) at 10.*fn1
As noted, it is the defendant's burden to show that the plaintiff has failed to exhaust available administrative remedies. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2002). Evidence of failure to exhaust must be reliable before the court will grant a defendant's motion to dismiss. See id. (refusing to rely on the defendant's evidence in that case, the court noted that "there is no evidence in the record establishing that the 'Appeal Record' is what defendants say it is. We cannot tell from the record whether that document is a complete record of Wyatt's Director's Level appeals.").
Defendant has produced several lists of plaintiff's appeals. See Decl. of R. Carter (Carter Decl.) & Exs. filed Oct. 30, 2009 (Docket No. 31-3); Declaration of N. Grannis (Grannis Decl.) & Exs. filed Oct. 30, 2009 (Docket No. 31-4); Declaration of S. Walch (Walch Decl.) & Exs. filed Oct. 30, 2009 (Docket No. 31-5). However, there are numerous problems with defendant's evidence, which raise questions regarding its comprehensiveness and reliability.
The declaration of R. Carter, the former Appeals Coordinator at California State Prison-Sacramento (CSP-SAC), presents several problems, the most obvious of which is that the declaration is unsigned. Because Carter's declaration ends abruptly at the bottom of the second page without a date or signature, it is unclear whether Carter intended ...