FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The court found plaintiff's second amended complaint appropriate for service against the following defendants for the following claims: Turner, Weaver and Goforth, insofar as the complaint alleges they ignored plaintiff's medical chronos and used or condoned excessive force; Dharlinque, insofar as the complaint alleges he retaliated against plaintiff for plaintiff's use of the grievance process; Roberts, insofar as the complaint alleges he ordered plaintiff be deprived of basic necessities and acted in retaliation for plaintiff's grievances and ignored plaintiff's medical chronos; Peddicord, Wright, and Amero insofar as the complaint alleges they ignored plaintiff's medical chronos; Beckman, insofar as the complaint alleged he acted in retaliation for plaintiff's use of the grievance process; Pantorolo insofar as the complaint alleges he acted in retaliation and confiscated plaintiff's medications and medical equipment; Zills, insofar as the complaint alleges he acted in retaliation for plaintiff's use of the grievance process; Rohlfing, insofar as the complaint alleges he failed to treat plaintiff's pain and cancelled plaintiff's medical chronos; Runnels, insofar as the complaint alleges he ignored plaintiff's complaints of constitutional violations; and Brown.
During the course of the litigation, the court has granted defendant Rohlfing's motion to dismiss and dismissed defendants Brown and Dharlingue. See Dckt. Nos. 70, 76, 125. Defendants Turner, Weaver, Goforth, Amero, Pontarolo, Zills and Runnels have now filed a motion to dismiss on the ground that plaintiff has failed to exhaust administrative remedies as to the claims against them. See Defs.' Mot. to Dism., Dckt. No. 139. Defendants Wright, Peddicord and Roberts acknowledge that plaintiff properly exhausted administrative remedies as to them. Defs.' Reply, Dckt. No. 150, at 2.
I. Exhaustion Under The PLRA
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). "Prison conditions" subject to the exhaustion requirement 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, 218-219 (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 Department of Corrections and Rehabilitation, which instructs the inmate to describe the problem and out line 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.
Although a motion to dismiss for failure to exhaust administrative remedies prior to filing suit are normally brought under Rule 12(b) of the Federal Rules of Civil Procedure, Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), when ruling on such a motion requires the court to look beyond the pleadings in the context of disputed issues of fact the court must do so under "a procedure closely analogous to summary judgment." Id. 1119, n.14. Because care must be taken not to resolve credibility on paper as it pertains to disputed issues of material fact, the undersigned applies the standards applicable under Rule 56 to exhaustion motions which require consideration of materials extrinsic to the complaint. See Chatman v. Felker, 2010 WL 3431806 at 2-3 (E.D. Cal., August 31, 2010).
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 at 936-37.
Plaintiff alleges that when he was released from administrative segregation to C-Facility, defendant Amero "had his subordinates physically manhandle plaintiff by cuffing him from behind despite having a medical chrono to the contrary and physically pushing plaintiff into a cell where he had no bottom bunk access despite having a medical chrono to the contrary." Plaintiff told Amero about the chronos, but Amero said he didn't care. Amended Complaint (Am. Compl.) § 27.
On April 9, 2003, plaintiff filed a 602, which was assigned Log No. HDSP-03-0849. Defs.' Mot. to Dism., Decl. of T. Robertson (Robertson Decl.) § 7 & Ex. 4 (grievance). Plaintiff asked to be transferred back to a 270 degree-design yard and to be placed in a single cell and that defendant Amero be disciplined for attacking him. Ex. 4 at 16.*fn1 In conjunction with this grievance, plaintiff submitted an "Allegation of Misconduct By Peace Officer." Ex. 4 at 19.
The informal level was bypassed and the grievance was assigned to the first level for review. The first level response was issued on April 29, 2003, signed by Associate Warden M.D. McDonald. Mot. to Dism., Ex. 5 McDonald concluded that "the allegations made by you in regards to the claim of misconduct on the part of Correctional Sergeant Amero . . . were unsubstantiated. All allegations of staff misconduct were reviewed and evaluated to determine if the evidence supports the accusations." Ex. 5 at 21. McDonald denied plaintiff's "request for reprimand of these staff members is denied," as was his request for transfer to a 270-design yard. Id. He concluded "your appeal has been partially granted in that the staff investigation into your allegations has been completed, but unsubstantiated" and noted that if dissatisfied, plaintiff could "appeal to the Second Level by following the instructions on your appeal form." Id. at 22.
Plaintiff pursued a second level review. The section for requesting a second level determination says, "If dissatisfied, explain reasons for requesting a Second-Level Review, and submit to Institution . . . Appeals Coordinator. . . ." Mot. to Dism., Ex. 4 at 17. Plaintiff wrote, "since my arrival on the C-yard, I have been threaten [sic] by Lt. C. Beckman and harassed by C/O Pontarolo for using the appeal system against fellow officers on both the B & D yards. Future harassments is [sic] inevitable . . . ." Ex. 4 at 17; Pl.'s Opp'n, Decl. of Charles Chatman (Chatman Decl.) ¶¶ 22, 23. He received a "screen-out" form, dated June 13, 2003, which said that"Your original appeal issue concerned ICC of 3/27/03. However, in appealing to the second formal level, you have changed your appeal issue to include Lieutenant Beckman[.]" *fn2 Under the heading "Abuse of the Appeal Process," a box next to the printed words "You are attempting to change your original appeal issue" is checked. Ex. 6; see also Decl. of T. Robertson (Robertson Decl.) ¶ 7.
The grievance form itself does not reflect that any action was taken on the second level. Even so, on June 22, 2003*fn3 , plaintiff sought a third-level review: "I am still subjected to the same conditions, as Appeals Coordinator H. Wagner is trying to sabotage the appeal by denying me access to be heard on the Second Level response." Ex. 4 at 17. Defendants provide a declaration by D. Foston, Chief of the Inmate Appeals Branch, who avers that he undertook search of the database at the IAB to determine whether Chatman filed an appeal accepted at the third level concerning Amero's actions. Mot. to Dism., Decl. of D. Foston (Foston Decl.) ¶¶ 4. He does not address what this search revealed about any grievances concerning defendant Amero. Foston Decl. ¶ 6. Plaintiff concedes that he did not secure a Director's Level decision on this grievance, but argues that he attempted to do so by sending the screened-out grievance to the IAB, which returned it to him because he had not completed the second level. The rejection letter instructed plaintiff to contact the appeals coordinator and "comply with instructions from that office" if he disagreed with the second level rejection. Pl.'s Opp'n., Chatman Decl. ¶ 29 & Ex. B7, 9. After that, plaintiff sent a copy of this letter and his 602 to the appeals coordinator; the grievance was again screened out because of the attempt to change the appeal issue. Pl.'s Opp'n., Chatman Decl. ¶ 31 & Ex. B 10-11; Mot. to Dism., Ex. 7.
Defendants argue that plaintiff's attempt to change the focus of his grievance resulted in its being screened out and ultimately not accepted at the Director's Level, which renders the claim against defendant Amero unexhausted. Plaintiff counters that the regulations do not prohibit an inmate from changing the issue during the grievance process, and therefore the screen-out was improper and rendered further remedies unavailable. Plaintiff is mistaken.
The Ninth Circuit has recognized that a prisoner may be unable to exhaust if a grievance is improperly screened out because the improper action would render the grievance system unavailable. See Sapp v. Kimbrell, ...