The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under 42 U.S.C. § 1983. On June 15, 2010, the court ordered service of the second amended complaint*fn1 for the following defendants: Zhang, for allegedly failing to ensure that plaintiff's dental problems were addressed; Sisto and Swarthout, for allegedly exposing plaintiff to disease as a result of crowded conditions; and Sisto, Swarthout, Brown and Haviland, for allegedly exposing plaintiff to disease as a result of ventilation problems in prison dorms. See Order at 3 (Docket No. 38). The defendants have moved to dismiss, arguing, among other things, that plaintiff failed to exhaust administrative remedies as to any of his claims against them.
I. Standard of review for determining exhaustion
The exhaustion requirement is rooted in the Prison Litigation Reform Act (PLRA), 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). The California Department of Corrections and Rehabilitation's (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.
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.
Under CDCR regulations, an inmate must file his prisoner grievance within fifteen days of the events grieved.*fn2 If a plaintiff failed to exhaust available administrative remedies by filing a late grievance, his case must be dismissed. Woodford v. Ngo, 548 U.S. 81 (2006). 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). Exhaustion "'means using all steps that the agency holds out, and doing so properly....'" Woodford, 548 U.S. at 90 (citation omitted). Therefore, unless he can prove that some part of the process was unavailable to him, an inmate must have pursued a grievance through every stage of the prison's administrative process before he files a civil rights action.
Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119. The court resolves all ambiguities in favor of the non-moving party. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
II. Plaintiff's claim against Dr. Zhang
Plaintiff alleges that Defendant Zhang, a dentist, has "willfully denied" him dental treatment since November 14, 2008. Second Amended Complaint at 4 (Docket No. 31). Zhang responds that the claim against him is unexhausted because plaintiff did not complete the appeals process for his administrative grievance until after he filed this lawsuit.
Each party has submitted its own proof of when plaintiff exhausted his grievance concerning his dental treatment. The grievance that explicitly names Dr. Zhang was exhausted on March 22, 2010, when it was denied by the Office of Third Level Appeals -- Health Care (OTLA). See Mot., Declaration of L.D. Zamora, Ex. A (Docket No. 124-2). Plaintiff has submitted a letter from OTLA showing he exhausted another grievance on April 27, 2010, about thirty-six days after the grievance against Zhang was exhausted. See Opp'n at unnumbered p. 16 (Docket No. 128). That grievance concerns plaintiff's alleged dental problems, but it does not name Zhang.
As noted above, an inmate need not name a particular individual during the grievance process in order to preserve that person as a civil defendant and meet the PLRA's exhaustion requirement when he files suit. See note 1, supra. Therefore either grievance could stand as proof that plaintiff exhausted his claim against Zhang for deliberate indifference to serious dental problems. However, both grievances were filed after plaintiff initiated this lawsuit on June 2, 2009. For purposes of exhaustion, that timing is fatal: the "PLRA's exhaustion requirement does not allow a prisoner to file a complaint addressing non-exhausted claims, even if the prisoner exhausts his administrative remedies while his case is pending." Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.2010). That bar applies to this case under either of the grievances that have been submitted as proof of exhaustion. Therefore, the claim against Zhang should be dismissed.
III. Plaintiff's claims against defendants Sisto, Swarthout, Haviland and Brown In its screening order, the court defined the claims cognizable against defendants other than Zhang. The court found the second amended complaint alleges that (1) Sisto and Swarthout were aware of, and ignored, increased exposure to disease caused by overcrowded conditions in the prison dorms, and (2) Sisto, Swarthout, Haviland and Brown were aware of, and ignored, increased exposure to disease caused by problems with ventilation in the dorms. All four defendants respond that plaintiff did not exhaust any of those claims against them, arguing that plaintiff did not submit any grievance related to overcrowding or ventilation problems in prison dorms.
Defendants rely on the declaration of D. Foston, Chief of the Office of Appeals (formerly the Inmate Appeals Branch) of the CDCR. Foston states that plaintiff filed only one appeal that "raised a sanitation issue, and no appeal discussed ventilation or overcrowding." Mot., Declaration of D. Foston ¶ 7 (Docket No. 124-3). He states that in that appeal, which was assigned Log No. SOL-09-01867, "Stephen asserted that he was not being provided with disinfectant for the toilet within the dormitory." Indeed, sanitation in the bathroom appears to be the principal concern raised in that grievance, and the only relief requested is a disinfected toilet area, but it is not entirely true that the grievance does not also include a complaint about overcrowding. The handwritten grievance says that "overcrowding in dorms of Solano 4 yard violate basic needs when denied necessary health and safety environmental conditions when diseases exist [sic]." Id., Ex. A at 5. Although its syntax makes it difficult to read, this allegation of overcrowding clearly appears in the context of the more specific complaint about poor bathroom sanitation. The court is bound to resolve all ambiguities regarding exhaustion in favor of the plaintiff, so it cannot say definitively that plaintiff has never filed a grievance related to overcrowding.
Plaintiff submits Log No. SOL-09-01867 in his opposition, but, even with the benefit of the doubt that he complained about overcrowding in that grievance, he cannot rely on it as proof of exhaustion: the grievance was filed on August 30, 2009, almost three months after he filed this lawsuit. As discussed above, the PLRA requires complete exhaustion before a plaintiff can file a complaint for alleged violations of his civil rights. See Rhodes, supra. Plaintiff does not aver that the grievance process was made unavailable to him previous to his filing Log No. SOL-09-01867, nor does he submit other proof showing he exhausted his claims of overcrowding or poor ventilation before he filed this ...