The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS AND
DISMISSING THIS ACTION FOR PLAINTIFF'S FAILURE TO EXHAUST ADMINISTRATIVE
Plaintiff is a state prisoner proceeding pro se in this civil rights action. The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1).*fn1 Pending before the Court is Defendants' motion to dismiss. Plaintiff has opposed the motion.
This action proceeds on the August 11, 2008, first amended complaint. Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at San Quentin State Prison, brings this action against correctional officials employed by the CDCR at California State Prison Corcoran. The events that give rise to this lawsuit occurred while Plaintiff was housed at CSP Corcoran. Plaintiff names the following individual defendants: Sergeant R. Sumaya; Sgt. R. Juarez; Correctional Officer (C/O) B. Bell; C/O R. L. Miller.
Plaintiff alleges that between August 31, 2004, and January 9, 2005, he was sexually assaulted twice by Defendant Sumaya. Plaintiff alleges that Defendants Miller, Juarez and Bell "threatened the life of the plaintiff verbally as a result of the plaintiff filing an Inmate Appeal CDC Form 602." (Am. Compl. ¶ IV.) On May 20, 2009, an order was entered, finding that Plaintiff stated a claim for relief against Defendants Sumaya, Miller, Juarez and Bell for violations of the Eighth Amendment.
Defendants Sumaya, Miller, Juarez and Bell move to dismiss this action for Plaintiff's failure to exhaust his available administrative remedies prior to filing suit. "The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009)(citing 42 U.S.C.§ 1997e(a)). "[T]he PLRA exhaustion requirement requires proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 93 (2006). This means that a prisoner must "complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)(quoting Ngo, 548 U.S. at 88). In California, there are four levels of review - informal level, first formal level, second formal level, and third formal level. The third formal level constitutes the Director's decision on appeal. Cal. Code Regs. Tit. 15, § 3084.5(e)(2).
Defendants support their motion with the declarations of T. Cano and D. Foston. D. Foston is the Chief of the Inmate Appeals Branch (IAB) of the CDCR. Foston declares that "IAB records show that Inmate Santos Flores (T-11305) did not submit any appeal to the IAB that was accepted and exhausted or received and screened out at the Director's level review between August 31, 2004 and October 7, 2009." (Foston Decl. ¶ 3.) T. Cano is the Appeals Coordinator at CSP Corcoran. As the Appeals Coordinator, Cano is responsible for screening inmate grievances and appeals for compliance with regulations, coordinating their processing, and maintaining the records concerning inmate grievances filed at CSP Corcoran. Cano declares that between August 31, 2004 and October 7, 2009 Plaintiff filed two inmate grievances that were accepted for review: Grievance No. CSPC-3-06-01476 and Grievance No. CSPC-3-06-04754. (Cano Decl. ¶¶ 2,3.)
Exhibit A to Cano's declaration is a copy of Grievance No. CSPC-3-06-01476. This grievance, filed by Plaintiff on November 13, 2005, concerns copies of medical and mental health records requested by Plaintiff. In paragraph A of the CDC form 602, Plaintiff describes the issue as follows:
On at least 2 previous occasions I requested copies using the inmate request for interview form (EA-22) all previous attempts has been to no avail this refusal has/will impact impede my attempt to pursue recourse and appropriate medical and mental health care for injuries resulting from my being assaulted I need records from Dec 2000 to March 2001 that, June 2004 Jan 2005 (Ex. A, p. 1.) The appeal was granted at the first level of review, in that Plaintiff received copies of the records he sought.
Exhibit B to Cano's declaration is a copy of Grievance No. CSPC-3-06-04754. In this grievance, Plaintiff identifies the defendants in this lawsuit, and refers to an incident of "guard brutality" on August 31, 2004. He also complained of internal problems with his rectum and bowel movements and requested medical attention. Plaintiff did not, however, submit his grievance until March 26, 2006. On November 8, 2006, the staff-complaint portion of the grievance was screened out as untimely. (Ex. B, p. 5.) Plaintiff was advised that his medical concerns would be addressed. (Id.) Plaintiff agreed with the course of action regarding his medical care, and was seen by medical staff on December 21, 2006, (Id., p.2.)
The Court finds that Defendants' exhibits establish that Plaintiff failed to exhaust his available administrative remedies prior to filing suit. Defendants' Exhibit B indicates that although Plaintiff did file an inmate grievance concerning the conduct at issue, he did so in March of 2006. Plaintiff's grievance regarding staff conduct was screened out as untimely. In order to properly exhaust his administrative remedies, Plaintiff must comply with the required deadlines. "[Proper] exhaustion of administrative remedies is necessary,"Woodford v. Ngo, 126 S.Ct. 2378, 2382 (2006), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules . . . ," Id. at 2386. The evidence submitted by Defendants indicates that Plaintiff failed to timely file an inmate grievance concerning the conduct at issue. Plainitff's grievance was properly screened out as untimely.
In his opposition, Plaintiff states that he "did file several 602's, but only one of them was ever processed regarding the issues of his assault. . ." (Opp'n. p. 2.) The only other ...