The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On March 17, 2010, defendants filed a motion to dismiss on the grounds that plaintiff failed to exhaust his administrative remedies prior to filing the instant action, and that plaintiff failed to state a cognizable civil rights claim against defendant Audette. After receiving extensions of time, plaintiff filed an opposition on July 2, 2010. Defendants filed a reply on July 15, 2010.*fn1
II. Motion to Dismiss for Failure to Exhaust
Background Plaintiff is proceeding on his amended complaint filed January 9, 2009, against defendants Audette, Koller, Plainer, Ingrewson, Speers, Wrigley, Flaherty, Prater, Shaver, Koenig, Pena, Medina, Zollo, Clark, Cheney, Nason, Waterman, Swingle, Acquaviva and Dezember (collectively "defendants"). Plaintiff raises myriad claims allegedly exhausted through several separate administrative appeals, addressed more specifically below. Plaintiff seeks declaratory and injunctive relief, monetary and punitive damages. (Dkt. No. 11 at 8-9.)
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [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). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734. The fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records).
A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Brown, 422 F.3d at 936-37.
As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84.
The State of California provides its prisoners the right to appeal administratively "any departmental decision, action, condition or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). It also provides them the right to file appeals alleging misconduct by correctional officers and officials. Id. at § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal.Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.
Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court may look beyond the pleadings to determine whether a plaintiff exhausted his administrative remedies. Id. at 1119-20.
Defendants concede that plaintiff exhausted grievance HDSP-07-03973 through the third level on June 30, 2008, prior to filing the instant amended complaint. (Dkt. No. 60 at 11.) This grievance serves to exhaust plaintiff's claims concerning his treatment on November 9, 2007, during an interview at the unit office with mental health staff, as well as his subsequent placement in a holding cell in triangle restraints, where he was allegedly denied drinking water, access to the bathroom, and orthopedic boots, for several hours. (Dkt. No. 11 at 8-15.) Plaintiff named defendants Koller, Plainer, Ingrewson and Audette in connection with this claim.
These defendants will be directed to file a responsive pleading to the amended complaint.
However, there are no charging allegations as to defendants Speers, Wrigley, Flaherty, Prater, Shaver, Koenig, Pena, Medina, Zollo, Clark, Cheney, Nason, Waterman, Swingle, Acquaviva and Dezember with regard to plaintiff's claims exhausted by grievance HDSP-07-03973. These defendants will not be required to ...