The opinion of the court was delivered by: Gregory H. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. The court found the amended complaint appropriate for service on the following claims against the following defendants: Whitten, insofar as the complaint alleges that Whitten retaliated against plaintiff by filing a rules violation report on April 27, 2007, placed plaintiff in a holding cage despite his awareness of the impact of such actions on plaintiff's mental health, and conducted searches for purposes of harassment; Greer, insofar as the complaint alleges he searched plaintiff for purposes of harassment and placed plaintiff in a holding cage despite his awareness of plaintiff's mental condition; Moore, insofar as the complaint alleges he searched plaintiff for purposes of harassment; Protivinsky, insofar as the complaint alleges he searched plaintiff for purposes of harassment; and Brewer, insofar as the complaint alleges she was aware that Moore and Protivinsky lied about the reasons for the search yet failed to stop it.
Defendants Brewer, Greer, Protivinsky and Whitten*fn1 have filed a motion to dismiss, arguing that plaintiff failed to exhaust administrative remedies before filing suit and that the complaint fails to state a claim. They support the motion with declarations from D. Lewis, the Appeals Coordinator at the California Medical Facility, and D. Foston, the Chief of the Inmate Appeals Branch, as well as copies of plaintiff's grievance history.
I. Administrative Exhaustion 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 alert prison officials to the claims the plaintiff has included in the complaint, but it 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 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 only available remedies; 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 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."
Here, defendants have presented evidence of a number of grievances plaintiff filed relating to the allegations of the complaint, but they allege that plaintiff did not receive third level decisions on many of these grievances or received them after he filed the complaint at issue.
Plaintiff argues that administrative remedies have been exhausted, but he presents no evidence supporting his claim. Instead he complains that prison authorities have not returned "two bags" of legal documents which were taken in a cell search. He does not link the missing documents to administrative exhaustion in this case or otherwise allege that the documents would allow him to refute defendants' claims of non-exhaustion.
A. Plaintiff's Grievances of Improper Searches, Retaliation and Deliberate Indifference to Mental Health Needs in 2007 and 2008
On November 13, 2007, plaintiff filed a grievance, assigned Log No. 07-M-3859, in which he complained that defendant Whitten improperly searched him three times in a two week period immediately following the dismissal of a rules violation report (RVR) that Whitten had prepared. His complaint makes it clear that he believed the searches were part of a pattern of sexual harassment and retaliation for having been exonerated of the charges in the RVR. He also alleged that defendant Whitten deliberately put him in a holding cage for harassment purposes despite plaintiff's psychiatric history. Motion To Dismiss (MTD), Declaration of D. Lewis (Lewis Decl.) ¶ 14 & Ex. B (Doc. No. 23-4) at 13-23.*fn2
On December 12, 2007, plaintiff withdrew the grievance. He wrote on his appeal form that "I've spoken to Officer A.H. Whitten and staff, issue resolved, I choose to withdraw."*fn3
Id. at 14. Two prison officials signed the same section of the form, acknowledging the withdrawal. Plaintiff did not pursue the grievance further. See MTD, Declaration of D. Foston (Foston Decl.) and exhibits attached thereto, documenting all appeals plaintiff pursued to the Director's Level. Defendants argue that because plaintiff did not seek a Director's Level review or ...