FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983, alleging that defendants Wright, Hayes and Sisson used excessive force against him during a cell extraction on September 17, 2008. Defendants have filed a motion to dismiss on the ground that plaintiff has not exhausted administrative remedies.
I. The Exhaustion Requirement
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 alert prison officials to the claims the plaintiff has included in the complaint, but need only provide the level of detail required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); 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").
Prisoners who file grievances must use a form provided by the California Department of Corrections and Rehabilitation (CDCR), which instructs the inmate to describe the problem and outline the action requested. The grievance process, as defined by California regulations, has one informal and three formal levels of review to address an inmate's claims, subject to certain exceptions. 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.
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). However, 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. Relying on Booth, the Ninth Circuit has held:
[A] prisoner need not press on to exhaust further levels of review once he has received all "available" remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.
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). 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."
Brown, 422 F.3d at 936-37.
II. Exhaustion In This Case
Defendants allege that plaintiff did not receive a decision from the Inmate Appeals Branch, the third formal letter of review, on any grievance alleging the excessive use of force on September 17, 2008. Plaintiff counters that his attempts to exhaust administrative remedies on the excessive force claim were stymied by a series of official actions and inactions.
P. Statti is the Appeals Coordinator at High Desert State Prison. Motion To Dismiss (MTD), Declaration of P. Statti (Statti Decl.) (Docket No. 26-5) ¶ 1. Statti has reviewed plaintiff's grievance history from September 17, 2008 through March 25, 2009, and located one grievance concerning excessive force, which was assigned Log No. HDSP-08-03228. Statti Decl. ¶ 4 & Ex. A (print-out of grievance list). Exhibit B to Statti's declaration is the grievance file for HDSP-D-08-03228, although that log number is not written on plaintiff's initial grievance itself. Nevertheless, the grievance describes the incident of September 17, 2008, asks for a "thorough investigation," suspension of the personnel involved, a bed move and transfer, and a copy of the use of force policy. Id., Ex. B.
Statti's records indicate plaintiff sent his grievance initially to the Office of Internal Affairs. Id., Ex. B at 13.*fn1 Plaintiff agrees that he mailed his 602 to the Office of Internal Affairs rather than providing it to the HDSP appeals office. Opposition (Opp'n) (Docket No. 29) at 3. Although defendants do not explain how the grievance ultimately arrived at the appeals office at High Desert State Prison, the form itself shows a stamped "received" date of December 2, 2008, and a handwritten "received" date of December 5, 2008. See Statti Decl., Ex. B at 10-11; see also id. ¶ 4 (assuming a receipt date of December 5).*fn2
This grievance was processed as a staff complaint and resolved in a memorandum dated January 14, 2009, but provided to plaintiff on January 20, 2009. Id. ¶ 4 & Ex. B at 8-9. The response notes that the grievance has been "partially granted" at the first level in that "an ...