ORDER AND 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. This action is proceeding on plaintiff's fourth amended complaint, filed March 9, 2009. This matter is before the court on defendants' motion to dismiss the claims against defendant Swan due to plaintiff's failure to exhaust available administrative remedies prior to filing suit. On November 5, 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).
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 imposed by this provision 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 1002, 1005 (9th Cir. 2010). 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, 621 F.3d 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, 532 U.S. at 741 (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, 422 F.3d at 935. Finally, claims dismissed for failure to exhaust administrative remedies should be dismissed without prejudice. McKinney, 311 F.3d at 1200.
II. Allegations of the Amended Complaint
Plaintiff's fourth amended complaint contains the following allegations against defendant Swan. In March 2007, defendant Swan "alleged" a false rules violation report against plaintiff "for receiving Restraining Order 'Single Cell'" in connection with another disciplinary proceeding against plaintiff. See Fourth Amended Complaint, filed March 9, 2009 (hereafter "Complaint"), at 6. On or about April 10, 2007, plaintiff told defendant Swan that he was not receiving proper psychiatric treatment. Defendant Swan threatened to place plaintiff in administrative segregation and took plaintiff's television, in retaliation for "115 dismissed and previous Court motion." (Complaint at 6-7.) The next day, defendant Swan took plaintiff's radio in retaliation for "protected First Amendment right" but the radio was later given back to plaintiff after his appeal was granted. (Id. at 7, Exs. S(4).) On April 17, 2007, defendant Swan told plaintiff that he had to accept inmate Turner as a cellmate or be placed in administrative segregation, even though inmate Turner yells in his sleep and keeps plaintiff awake all night. (Complaint at 7.) On April 22, 2007, defendant Swan placed plaintiff in administrative segregation in retaliation for plaintiff asking correctional officer Smith for help with his cellmate, and threatened plaintiff several times in retaliation for plaintiff's actions in filing a grievance against Swan.
III. Defendants' Motion to Dismiss
Defendants seek dismissal of all of plaintiff's claims against defendant Swan because plaintiff filed this action before he exhausted administrative remedies with respect to those claims. Defendants present the following evidence in support of their motion to dismiss.
All of the claims against defendant Swan raised in the fourth amended complaint were also raised in plaintiff's original complaint, which was filed on June 19, 2007. Between January 1, 2007 and June 19, 2007, plaintiff filed three administrative grievances against defendant Swan. See Declaration of D. Lewis in Support of Defendant Swan's Motion to Dismiss, filed January 28, 2011, at ¶ 4. These grievances arise from events that underly allegations raised against defendant Swan in this action, and were submitted at the first level of review by plaintiff on April 11, 2007, April 18, 2007, and May 4, 2007, respectively. See Exs. 1, 2 and 3 to Declaration of D. Foston in Support of Defendant Swan's Motion to Dismiss, filed January 28, 2011 (Foston Declaration). One of those grievances was denied at the final level of administrative review on September 21, 2007, and the other two were denied at the final level of administrative review on September 25, 2007. Foston Declaration at ¶ 4. In his opposition to the pending motion, plaintiff concedes all of the facts relevant to administrative exhaustion of his claims against defendant Swan.*fn1
The allegation against defendant Swan in the fourth amended complaint and the claims based on those allegations are substantially the same as those raised in plaintiff's original complaint. Thus, the operative date for plaintiff to have satisfied the exhaustion requirement is June 15, 2009, the date on which ...