FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants Dahl, Lisle, Martel, and Moazam ("defendants") move for summary judgment and to dismiss on the ground that plaintiff failed to exhaust his administrative remedies prior to filing suit. Dckt. No. 40. For the reasons stated below, the court finds that plaintiff failed to exhaust his administrative remedies prior to filing suit and therefore recommends that the motion be granted.
Plaintiff proceeds on his March 3, 2010 complaint which claims that defendants were deliberately indifferent to his medical/psychological needs in violation of the Eighth Amendment. Plaintiff alleged in his complaint that he is a prisoner at Mule Creek State Prison, where he is a participant in the Enhanced Outpatient Program. He alleged that defendants placed him in the Enhanced Outpatient Program because of his suicidal ideation and attempts to commit suicide in the preceding three years. Plaintiff alleged defendants were deliberately indifferent because they were removing him from the Enhanced Outpatient Program, thereby exposing him to a risk of harm to his future health.
With his complaint, plaintiff filed a motion for a preliminary injunction seeking to prevent defendants from removing him from the Enhanced Outpatient Program. Dckt. No. 2. On July 21, 2010, the district judge adopted the undersigned's recommendation to deny that motion. Dckt. No. 26.
On December 10, 2010, defendants moved for summary judgment on the grounds that:
(1) there is no evidence defendants were deliberately indifferent to plaintiff's medical or psychological needs because plaintiff was never removed from the Enhanced Outpatient Program and is still a participant in that program; (2) plaintiff cannot maintain an Eighth Amendment claim against Martel and Moazam based upon a theory of respondeat superior; and
(3) defendants are entitled to qualified immunity. Defendants also moved the court to dismiss this case on the ground that plaintiff failed to exhaust his administrative remedies prior to filing suit. Plaintiff opposed the motions and defendants filed a reply. Dckt. Nos. 46-48, 50.
The court considers the exhaustion issue first, as exhaustion is a prerequisite to suit. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted."); see also McKinney v. Carey, 311
F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring dismissal where prisoner fails to exhaust administrative remedies before filing suit and tries to do so while case is pending).
II. Exhaustion Under The PLRA
The Prison Litigation Reform Act ("PLRA") provides that "[n]o 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). "Prison conditions" subject to the exhaustion requirement have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prison . . . ." 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 need only provide the level of detail required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (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 California 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 three levels of review to address an inmate's claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, § 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. Id. § 3084.1(b).
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). 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 ...