The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER GRANTING MOTION TO DISMISS (Doc. 46)
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendant's July 15, 2011 motion to dismiss that alleges that Plaintiff failed to exhaust administrative remedies. (Doc. 45) Plaintiff has filed an opposition to the motion. After careful consideration of the submitted papers and the entire record in this case, the Court GRANTS the motion to dismiss.
In this case, the Court has found cognizable two causes of action. (Doc. 32 at 5, 7) In one, Plaintiff alleges that Defendants Trayham and Kelly deprived him of regular showers. Id at 5. In the other, Plaintiff alleges that Defendants Trayham, Kelly and Remdez threatened him if he continued to file 602 inmate grievances. Id. at 7. In this regard, Plaintiff alleges that on April 23, 2009, Defendant Remdez "said if I 602 anything else there would be hell to pay. (Doc. 31 at 7) He alleges that "On May 12th  I was called to program office. Sgt. Kelly threw my 602 Inmate grievance in a shredder and told me not to file another one for Health and Safety conditions." Id. Finally, on May 20, 2009, Plaintiff alleges that, Defendant Trayham, either directly or indirectly, told Plaintiff "to drop my complaining about living conditions or suffer reprisals." Id. at 8. Plaintiff remained at CCI until June 6, 2009 when he was transferred to another state prison. Id.
Defendants assert that Plaintiff failed to file a grievance related to the two issues raised in his complaint. (Doc. 46) Defendants argue that Plaintiff filed only two appeals in 2008 and 2009 and both concerned his medical care and delays in receiving medication. Id. at 5. Along with their motion, Defendants provide the declaration of K. Sampson, the Litigation Coordinator for the California Correctional Institute, in Tehachapi, California, where Plaintiff is housed. (Doc. 46-1.) Sampson attests that CCI records all appeals filed by inmates and also maintains a database of all appeals that were screened out. Id. at 1. Sampson reports that Sampson conducted a search of these records and found that Plaintiff filed two appeals during 2008 and 2009. Id. at 2. Both of these appeals related to concerns over the medical care provided to Plaintiff and his complaints about not receiving his medications in a timely fashion. Id. Records attached to Sampson's declaration detail that Plaintiff filed three appeals on January 21, 2009, but because they were triplicates, two were screened out. (Doc. 46-3)
Sampson declares that from July 1, 2009 through July 1, 2009, CCI received 21 appeals that were received with 19 being assigned to a first level review and 3 to a second level review. (Doc. 46-1) Thirty-eight appeals were screened out. Id. All of these appeals originated from inmates housed with Plaintiff in Housing Unit 1, Level 3 yard. Id. at 3.
Defendants also provide the declaration of D. Foston, who is the Chief of the Office of Appeals for the CDCR. (Doc. 46-3.) Foston declares, that Foston conducted a thorough search of the appeal files maintained by the Office of Appeals. Id. at 2. Foston reports that the search yielded no third level appeal filed by Plaintiff from 2008 through September 2011, related to the issues raised in this litigation. Id.
Plaintiff argues that his appeal, detailed on Exhibit 2 to Defendants' motion as Log Number CCI-0-09-00100 and received on January 21, 2009, raised issues related to his complaints over being deprived of showers and other hygiene issues and his concerns over staff conduct. (Doc. 48) Plaintiff does not provide a copy of this grievances but has attached numerous documents to his First Amended Complaint which detail the content of Plaintiff's 602 grievances. (Doc. 31 at 9-51)
On one sheet, Plaintiff details all of the grievances that he asserts he submitted but were not logged by CCI. (Doc. 31 at 51) The complaints relate to being forced to eat from makeshift tables made from trash cans, the condition of the inmate's mattresses, the time limits placed on using the law library, inadequate supplies and missing property after a cell search. Id. Only one grievance, filed on April 9, 2009, described as "Staff Misconduct" is arguably related to the issues of this lawsuit. Id. However, review of the other documents filed by Plaintiff reveals that this complaint is not related to this litigation but, instead, to claims that staff members were throwing away Plaintiff's grievances. Id. at 10, 11, 12,18.
On April 16, 2009 and April 20, 2009, Plaintiff filed an "Inmate Request for Interview." (Doc. 31 at 10, 11, 12) In each, respectively, Plaintiff listed his earlier grievances that he claimed that he filed and set forth descriptions of each earlier grievance including "being fed off unsanitary trash cans as makeshift tables," "health & safety violations" and "health & safety violations and mattresses that arent [sic] all there or badly contaminated." Id. Plaintiff did not assert that any of the grievances complain about a lack of regular showers or that he was threatened by a staff member.
On May 6, 2009, Plaintiff filed another "Inmate Request for Interview." (Doc. 31 at 13-14) In this request, Plaintiff decried the 602 process and outlined his previous grievances relating to "unsanitary conditions," "Health & Safety violations and unsanitary partial mattress." Id. at 14. He reported that on that same day, he was submitting a new 602 regarding "602 time limits/staff misconduct [regarding[ the 602 not getting logged." Id. Again, he did not claim that any of the grievances were about the lack of regular showers or that he was threatened by a staff member.
On May 14, 2009, Plaintiff wrote a letter to the Appeals Coordinator, K. Sampson in which Plaintiff further described what he believed was staff members throwing away his grievances. (Doc. 31 at 49-50) In the letter, he reported to Sampson that he submitted two 602s on May 13, 2009; one which complained about the failure to provide regular programs and yard time and the other which complained about the quality of the inmate's mattresses. Id. at 49. In conclusion to the letter, Plaintiff emphasized that he had to complain to outside agencies about the conditions at CCI which included complaints about "being in a total lockdown inviorment, no shower, no yard, no programs, no church, I was being feed of unsanitary trash cans used as plumber waste can/spit patoon/trash. I sleep on a partial mattress thats lump/smells of urin & shit and it aint a whole mattress." Id. at 50. Thus, this is the first report in which Plaintiff mentions the issue of the irregular shower schedule but does not contend that he filed any 602 inmate grievances related thereto.
Though there is no evidence that Plaintiff complained about the lack of regular showers in any 602 submission, it is clear that he complained to others outside of CCI on this topic. For example, on or about April 26, 2009, Plaintiff wrote to the Office of Internal Affairs in which he complained about the conditions at CCI and the failure of staff members to properly process 602s. (Doc. 31 at 24-26). Plaintiff reported that he filed four previous grievances on these topics; the first in December 2008, the second in late December 2008, the third was on or around February 3, 2009 and the fourth was on March 18, 2009. Id. at 24. Plaintiff asserted that each of these grievances related to "unsanitary conditions related to food health & safety violation committed by staff" and for staff members throwing away his 602s. Id.
In the letter to IA, Plaintiff requested assistance with the conditions including being forced to eat off makeshift tables made from trash cans, "numorous Health & Safety Issues" including being forced to use unsanitary food trays, being permitted to shower only every 5 to 8 days, inadequate and unsanitary mattresses and staff members "spraying pepr spray for complaining of mattresses that are not sleep-able and the Sgt who picks up the 602 to log them but instead destroys the 602 if it deals with Health & Safety violations." (Doc. 31 at 25) Once again, though Plaintiff mentions the lack of ...