The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Miller's*fn1 November 18, 2010 motion to dismiss filed on the grounds that plaintiff failed to exhaust administrative remedies, and motion for summary judgment on the grounds that undisputed facts show that defendant Miller did not violate plaintiff's constitutional rights in 2009, and plaintiff's pre-2009 claims are barred by the statute of limitations. After carefully reviewing the record, the undersigned concludes that defendant's motion to dismiss should be granted.
II. Plaintiff's Complaint
Plaintiff contends that in 1996 defendant A. Miller allegedly told plaintiff's classification committee that plaintiff was convicted of forcible rape, rather than statutory rape. (Dkt. No. 1 at 2.) Defendant Miller allegedly raised plaintiff's points to 52 and requested that plaintiff be transferred to Pelican Bay State Prison. (Id.) Plaintiff states he was transferred to CMC-East, where his points were reduced to 46 and the forcible rape conviction was changed back to statutory rape.
In 2000, plaintiff was transferred to California Medical Facility ("CMF"). Plaintiff contends defendant A. Miller showed up at plaintiff's classification hearing and again told the committee that plaintiff was convicted of forcible rape and allegedly blotted out plaintiff's "S" suffix designating plaintiff for single cell status. Plaintiff filed a lawsuit to have this designation corrected, and was allegedly placed in administrative segregation ("ad seg"). Plaintiff states the Inspector General investigated plaintiff's claims, plaintiff was transferred to Pleasant Valley State Prison, and the 1968 conviction was corrected to read statutory rape. (Id. at 3.)
On April 9, 2009, plaintiff was transferred back to CMF. Plaintiff alleges that he was returned to ad seg on April 15, 2009, based on 2000 charges that plaintiff was being over familiar with M.T.A. Reed. Plaintiff contends the paperwork resulting in his 2009 placement in ad seg was written after plaintiff arrived at CMF. Plaintiff contends defendant A. Miller was still a counselor at CMF, and alleges defendant Miller conspired with defendant Reed to have plaintiff held in ad seg. Plaintiff also contends that upon his return to CMF, defendant Miller allegedly changed plaintiff's conviction back to forcible rape rather than statutory rape.
Defendant provided evidence regarding plaintiff's administrative appeals. (Dkt.No. 53-1.) Plaintiff filed a verified opposition.*fn2 No reply was filed by defendant.
A. Legal Standard re Exhaustion
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[n]o 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). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734. The fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records).
A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Brown, 422 F.3d at 936-37.
As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84.
The State of California provides its prisoners the right to appeal administratively "any departmental decision, action, condition or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a) (2010). It also provides them the right to file appeals alleging misconduct by correctional officers and officials. Id. at § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.
Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court may look beyond the pleadings to determine whether a plaintiff exhausted his administrative remedies. Id. at 1119-20.
B. Analysis re Exhaustion
The instant complaint was filed on August 17, 2009. Therefore, plaintiff was required to exhaust his administrative remedies as to the instant claims on or before August 16, 2009. Booth, 532 U.S. at 741. Defendant provided the declaration of D. Foston, Chief of the Inmate Appeals Branch, who provided a log of any appeals by plaintiff that were "accepted and/or received and screened ...