The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. Defendants Buchanan and Stevens (defendants) are Correctional Officers with the California Department of Corrections and Rehabilitation (CDCR). Plaintiff is proceeding with claims arising under the Eighth Amendment against each of them. Defendants have filed a motion to dismiss.
I. Plaintiff's Allegations
On December 9, 2009, defendants arrived at plaintiff's cell to escort him to a medical appointment. Defendants applied mechanical restraints (handcuffs attached to a waste chain) to plaintiff. Defendants escorted other inmates as well as plaintiff. On the way to the transport vehicle, while walking outside, plaintiff slipped on ice, fell, and fractured his right clavicle. Plaintiff claims that, ordinarily, when an inmate is secured with mechanical restraints, a correctional officer keeps his hand on the waist chain in the event of a fall because the inmate cannot break his fall with his hands. Neither defendant had his hand on plaintiff's waist chain because they were escorting several inmates.
After plaintiff fell, defendants assisted him to his feet. Sometime later, they took him to the prison infirmary where he had x-rays.
II. Failure To Exhaust Administrative Remedies
Defendants argue that plaintiff has failed to exhaust administrative remedies with respect to his claims. A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Id.
The exhaustion requirement is rooted in the Prison Litigation Reform Act, which 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). CDCR regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a prisoner has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All steps must be completed before a civil rights action is filed, unless a plaintiff demonstrates a step is unavailable to him; exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119.
Defendants assert plaintiff failed to obtain a "Director's Level Decision" with respect to the allegations above against defendants. It appears plaintiff did submit a grievance regarding the events of December 9, 2009 on December 20, 2009. Opp'n at 11. The grievance was denied at the informal level and then plaintiff re-submitted it to the first formal level. Id. The response plaintiff received from the first formal level is as follows:
The action or decision being appealed is not within the jurisdiction of the department. We are returning the documents to you so you may pursue the matter through the appropriate agency. (CCR 3084.3(c)(1)).*fn1
Title 15 of the California Administrative Code § 3084.1 provides that inmates may utilize the CDCR grievance process for "review of departmental policies, decisions, actions, conditions, or omissions that have a material adverse effect on the wellfare of inmates and parolees." In light of such expansive criteria, and the fact that defendants fail to offer any reason why there was no "jurisdiction" to hear plaintiff's grievance at the first formal level, the court cannot find that plaintiff failed to exhaust available administrative remedies. On the record before the court, plaintiff did what he was required to do and then was shut-out of the grievance process for a reason which appears to run afoul of the regulations for the inmate grievance process. Defendants' motion to dismiss for failure to exhaust administrative remedies should be denied.
III. Failure To State A Claim
Next, defendants assert that plaintiff has failed to state a claim upon which relief can be granted. In order to avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a claim upon which ...