The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATION
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 are defendants'*fn1 motions to dismiss filed on the grounds that plaintiff failed to exhaust administrative remedies, and failed to comply with the California Tort Claims Act. (Dkt. Nos. 42, 53.) Plaintiff filed oppositions. (Dkt. Nos. 51, 56.) No reply was filed. After carefully reviewing the record, the undersigned concludes that defendants' motions to dismiss should be granted.
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. Plaintiff's Allegations
This action is proceeding on the third amended complaint ("TAC"), filed November 16, 2010. (Dkt. No. 25.) Pursuant to findings and recommendations issued October 22, 2010 (dkt. no. 22), and the district court's December 10, 2010 order (dkt. no. 26), various claims were dismissed, and this action now proceeds on the following four claims:
1. Plaintiff alleges that defendants A. Pickens, Martines, Laeres,*fn2 Plessas, Smith, Kissinger and Fletcher used excessive force and failed to protect plaintiff on June 25, 2008. (Dkt. No. 25 at 4.) Plaintiff included state law claims of assault and battery and the intentional infliction of emotional distress.
2. On October 8, 2008, plaintiff alleges defendant Jackson used excessive force, in violation of the Eighth Amendment, and raises state law claims of assault and battery and the intentional infliction of emotional distress. (Dkt. No. 25 at 7.)
3. Plaintiff alleges defendants Cosby, Wright, Boretz, and Krauss*fn3 retaliated against plaintiff for his litigation by their actions on June 25, 2008. (Dkt. No. 25 at 5, ¶¶ 49, 52.)
4. Plaintiff alleges defendants A. Pickens, Martines, Laeres, Smith and Kissinger were deliberately indifferent to plaintiff's serious medical needs on June 25, 2008. (Dkt. No. 25 at 4-5, ¶¶ 46-53.)
C. Exhaustion of Administrative Remedies
Defendants have submitted documents demonstrating that plaintiff submitted 26 grievances at High Desert State Prison that were accepted for review in 2008. (Dkt. No. 42 at 5-7; 42-2 to 42-4.) The court reviewed those grievances, and none of the 26 grievances raised facts underlying the remaining four claims alleged in the TAC. (Id.)
Defendants provided the declaration of L. D. Zamora, Chief of the Offices of Third Level Appeals-Health Care (OTLA).*fn4 (Dkt. No. 42-1.) Zamora declared that the OTLA maintains a computer database known as the Medical Appeals Tracking System in which all appeals received by the OTLA are logged, whether or not the appeals are ultimately accepted or screened out. (Dkt. No. 42-1 at 39.) The Medical Appeals Tracking System reflected that plaintiff submitted no medical appeals from August 2008, the date OTLA began tracking medical appeals, to February 11, 2011. (Id.)
Defendants also filed a declaration of D. Frazier, Health Care Appeal Coordinator, who provided a record of the health care appeals submitted by plaintiff from December 26, 2007, to February 11, 2011. (Dkt. No. 42-1 at 44-49.) This record reflects plaintiff filed the following appeals on or about the time of the incidents remaining at issue here:
* On August 21, 2008, plaintiff sought an arm brace;
* On September 11, 2008, plaintiff sought a TENS unit, sweatsuit and ...