ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with an action filed pursuant to 42 U.S.C. § 1983. On June 21, 2011, defendants Baker, Bal, Harvey, Hontz, Karelas, Macomber, Masuret, Mini, Schroeder, and Woods moved to dismiss this action, arguing that plaintiff failed to exhaust his available administrative remedies prior to filing this suit as required. Plaintiff has filed an opposition to the motion and defendants have filed a reply.
Plaintiff is proceeding on an amended complaint against defendants Baker, Bal, Harvey, Hontz, Karelas, Macomber, Masuret, Mini, Schroeder, and Woods. Therein, plaintiff alleges that he is disabled and suffers from HIV and other related medical conditions. He further alleges that he has a single-cell chrono for medical reasons, but defendants forced him to accept a cellmate who ultimately stabbed him eight times. Plaintiff claims that the named defendants failed to protect him, failed to provide him with adequate medical care, and denied him due process in connection with an investigation as to whether his life was in danger if he had a cell-mate. (Am. Compl. at 8 & Attachs.)
DEFENDANTS' MOTION TO DISMISS
Counsel for defendants argues that plaintiff failed to exhaust his available administrative remedies prior to filing this suit as required. Specifically, defense counsel argues that plaintiff used the administrative grievance process to raise the following claims relevant to this action: (1) prison officials have failed to assign him to segregated HIV-housing, (2) the Institution Classification Committee (ICC), which included defendants Hontz, Macomber, and Schroeder, used "manipulative and deceptive practice" to have plaintiff "sign off" on an enemy thereby placing his life in danger, (3) plaintiff is a "medically mandated prisoner" who is being illegally housed at CSP-Sacramento, a non-mandated medical facility, (4) plaintiff received a frivolous Rules Violation Report (A/S-10-02-015) for refusing a housing assignment, (5) plaintiff is not receiving adequate medical care because he is being denied medical marijuana, (6) defendants Baker, Mini, and Karelas failed to protect plaintiff in connection with his cell assignment, and (7) plaintiff's health and his the health of his fellow-inmates is endangered because prison officials will not allow plaintiff to have a single cell. However, defense counsel argues that plaintiff failed to obtain a director's level decision in response to any of these claims before he filed this civil action, thereby failing to satisfy the exhaustion requirement. (Defs.' Mot. to Dismiss at 6-8.)
II. Plaintiff's Opposition
In opposition to defendants' motion to dismiss, plaintiff argues that he administratively exhausted all of his claims. Plaintiff contends that the court should deem exhausted any appeals that prison officials rejected or screened out. Plaintiff also contends that prison officials granted him relief in response to some of his appeals, so he was not required to pursue those claims any further. (Pl's Opp'n to Defs.' Mot. to Dismiss at 3-7.)
In reply, defense counsel reiterates that plaintiff failed to exhaust the claims set forth in his complaint before he filed this suit. Counsel contends that a partial grant of plaintiff's inmate appeal is insufficient to render the claims therein exhausted because plaintiff had the opportunity to appeal to the director's level of review but chose not to do so. In addition, defense counsel notes that plaintiff lists a series of appeals that prison officials screened out, but plaintiff offers nothing more than his opinion that those "screen outs" improper. (Defs.' Reply at 2-5.)
I. Legal Standards Applicable to a Motion to Dismiss Pursuant to Non-Enumerated Rule 12(b) By the Prison Litigation Reform Act of 1995 ("PLRA"), Congress amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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 "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The United States Supreme Court has ruled that exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. Id. at 741 n.6. Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 90-93 (2006).
In California, prisoners may appeal "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Most appeals progress through three levels of review. See id. § 3084.7. The third level of review constitutes the decision of the Secretary of the California Department of Corrections and Rehabilitation and exhausts a prisoner's administrative remedies. See id. § 3084.7(d)(3). A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available before filing suit. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative defense. See Jones v. Bock, 549 U.S.199, 216 (2007) ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints."); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003). The defendants bear the burden of raising and proving the absence of exhaustion. Wyatt , 315 F.3d at 1119. When the district court concludes that the prisoner has not ...