FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that he was transferred in retaliation for filing a request for cataract surgery and that he has been improperly denied this necessary surgery. This action is proceeding on plaintiff's amended complaint, filed December 9, 2009. Defendants have moved to dismiss this action for failure to exhaust administrative remedies prior to suit. On October 9, 2009, the court advised plaintiff of the requirements for opposing a motion to dismiss for failure to exhaust administrative remedies. See Wyatt v. Terhune, 305
F.3d 1033 (9th Cir. 2002). On August 25, 2010, this court issued findings and recommendations recommending defendants' motion be granted. By order filed October 7, 2010, the findings and recommendations were vacated and the parties were directed to brief the application of Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. Sept. 8, 2010) and Sapp v. Kimbrell, 623 F.3d 813 (9th Cir. Sept. 27, 2010) to the issues raised in defendants' motion. The parties have now filed their supplemental briefs.
The exhaustion of administrative remedies prior to bringing a prisoner civil rights action is required by 42 U.S.C. § 1997e(a). The statute provides:
No 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). The exhaustion requirement that it imposes is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). A prisoner is required to exhaust administrative remedies for claims contained within a complaint before the complaint is filed. Rhodes v. Robinson, 621
F.3d at 1005. Compliance with this requirement is not achieved by satisfying the exhaustion requirement during the course of an action. See McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). However, new claims based on conduct which occurs after the filing of an original complaint may be raised in an amended pleading if the administrative exhaustion requirement is satisfied prior to the time the amended pleading is filed. See Rhodes at 1004-05.
California's Department of Corrections provides a four-step grievance process for prisoners who seek review of an administrative decision or perceived mistreatment. Within fifteen working days of "the event or decision being appealed," the inmate must ordinarily file an "informal" appeal, through which "the appellant and staff involved in the action or decision attempt to resolve the grievance informally." Cal.Code Regs., tit. 15, §§ 3084.5(a), 3084.6(c). [Footnote omitted.] If the issue is not resolved during the informal appeal, the grievant next proceeds to the first formal appeal level, usually conducted by the prison's Appeals Coordinator. Id. §§ 3084.5(b), 3084.6(c). Next are the second level, providing review by the institution's head or a regional parole administrator, and the third level, in which review is conducted by a designee of the Director of the Department of Corrections. [Footnote omitted.] Id. § 3084.5(e)(1)-(2).
Brown v. Valoff, 422 F.3d 926, 929-30 (9th Cir. 2005). As a general rule, inmates must proceed through the Director's Level of Review to satisfy the exhaustion requirement and regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (inmates must satisfy exhaustion requirement "regardless of the relief offered through administrative procedures" as long as some relief is available). However, "a prisoner need not press on to exhaust further levels of review once he has either received all 'available' remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available." Brown at 935.
Finally, claims dismissed for failure to exhaust administrative remedies should be dismissed without prejudice. Id. at 1200.
II. Allegations of the Amended Complaint
The amended complaint contains the following allegations relevant to the motion
at bar. Plaintiff has had cataracts in both eyes and glaucoma primarily in his right eye for several years while in prison. Over a year before plaintiff's amended complaint, defendant Col advised plaintiff to have cataract/lens replacement surgery "which he said would greatly improve [plaintiff's] vision." Amended Complaint, filed December 9, 2009, at 3. In late July 2009, plaintiff filed an ADA request seeking cataract surgery. Plaintiff heard nothing for several weeks, and then he received notice that he would receive a bright green vest with the words "Visually Impaired" on the outside. On August 5, 2009, defendant Col agreed to request cataract surgery for plaintiff. Later the same day, plaintiff was informed that Associate Warden Jackson had directed plaintiff to pick up the vest. On August 6, 2009, defendant Col completed a form stating that plaintiff was legally blind. On August 10, 2009, defendant Kissel called plaintiff to her office and told plaintiff that she was transferring him out of Mule Creek State Prison (Mule Creek) because he was wearing a visually impaired vest, which meant he was legally blind, and Mule Creek did not have facilities for legally blind people. She also told ...