The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. The parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Pending before the court is defendants' September 30, 2010 motion to dismiss filed on the grounds that plaintiff failed to exhaust administrative remedies, with the exception of the alleged excessive force claim against defendant Callison, and that plaintiff failed to state cognizable due process or equal protection claims under the Fourteenth Amendment. After carefully reviewing the record, the undersigned concludes that defendants' motion to dismiss should be granted.
A. Legal Standard re Exhaustion
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) (2010). 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.
B. Plaintiff's Allegations
Pursuant to the mailbox rule, plaintiff constructively filed the original complaint in this action on March 1, 2010.*fn1 The complaint was file-stamped by the Clerk of Court on March 5, 2010. This action is proceeding on the second amended complaint ("SAC"), constructively filed June 15, 2010, and file-stamped on June 21, 2010, as to defendants Callison and Swart. (Dkt. No. 34.) In the SAC, plaintiff alleges the following:
1. On November 27, 2009, during a cell move, defendants used excessive force by slamming him into a wall and holding cage several times, called plaintiff a racial epithet, verbally threatened plaintiff, and placed a sheet soiled with human feces on it on plaintiff's head. (Dkt. No. 34 at 6-7.) Defendant Callison also took plaintiff's eyeglasses. (Id.) Plaintiff was without his eyeglasses from November 27, 2009, until March 24, 2010, and suffered "really bad" headaches. (Id. at 21-24.) When they reached the newly-assigned cell, defendant Swart took dirty water from the commode and poured it on plaintiff's mattress and threw the sheet with feces on it at plaintiff. (Id. at 7.) Defendants took plaintiff's legal property. (Id.)
2. On December 3, 2009, defendant Callison called plaintiff a racial epithet, threw a dinner tray at plaintiff, punched plaintiff in the face while escorting him to the medical clinic, slammed plaintiff into a holding cage, and after placing plaintiff's hands in triangle restraints, pulled plaintiff's hands and wrists out of the tray port in a way to cause plaintiff pain. (Id. at 8-9.)
3. On January 5, 2010, defendant Callison twice called plaintiff a racial epithet, and refused to let plaintiff out to the exercise yard in retaliation for plaintiff filing a prison grievance against Callison. (Id. at 10-11.)
4. On February 3, 2010, defendant Callison called plaintiff a racial epithet, and threatened plaintiff. (Id. at 11.)
5. On March 29, 2010, defendant Callison made threatening gestures toward plaintiff from the watch tower of the housing unit. (Id. at 12.)
6. On April 16, 2010, defendants Callison and Swart verbally harassed plaintiff, searched plaintiff's cell, and threw away plaintiff's legal materials in retaliation for the filing of the instant action. (Id.) Defendant Callison threatened plaintiff to drop the staff complaints or plaintiff would be sorry. (Id.)
C. Evidence re Exhaustion
Defendants have submitted evidence that plaintiff submitted three grievances at High Desert State Prison that were accepted for review between November 27, 2009, and June 21, 2010:
1. Grievance No. HDSP-09-02295. In this grievance, plaintiff alleged that on December 3, 2009, defendant Callison allegedly: harassed plaintiff, called him a racial epithet, refused plaintiff a spoon, threw a food tray at plaintiff, "socked" plaintiff in the left side of his head during an escort, placed plaintiff's hands in triangle restraints, then pulled plaintiff's hands and wrists through the tray port, causing him pain. (Dkt. 51-2 at 6-7.) Plaintiff also complained that "they took my eyeglasses away." (Id. at 7.) Only ...