The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under 42 U.S.C. § 1983. His first amended complaint alleges defendants Bainbridge, Follosoco and Lipton used excessive force against him while he was an inmate at High Desert State Prison (HDSP) and that Lipton was deliberately indifferent to a serious medical need, all in violation of the Eighth Amendment. The defendants have filed a motion to dismiss the excessive force claims for failure to exhaust administrative remedies. They have also filed a motion for summary judgment. Both motions have been fully briefed.
I. Plaintiff's allegations
Plaintiff alleges three instances of excessive force. First, he states that on September 21, 2007, defendant Bainbridge used excessive force in handcuffing plaintiff, who was at the time in a wheelchair and already suffering from an injured right arm. See First Amended Complaint, ¶¶ 33-34 (Docket No. 32). Second, he alleges that on October 16, 2007, Bainbridge searched him as he was leaving the prison law library and, using excessive force, squeezed his buttocks and testicles. Id. at ¶ 43. Third, plaintiff alleges that on November 6, 2007, he "blacked out" in his cell. Id. at ¶ 46. He states that he regained consciousness as he was being taken to the prison medical clinic, where he refused medical treatment and asked to be allowed to return to his cell. Id. at ¶ 47. Instead, defendant Follosoco allegedly "maliciously and sadistically twisted and pried open plaintiff's left arm and hand, and defendant Lipton maliciously and sadistically grabbed plaintiff's left thumb and wantonly [and] repeatedly stuck plaintiff with a needle, causing him to bleed." Id.
The first amended complaint also alleges deliberate indifference to a serious medical need against defendant Lipton, nurse at HDSP. It states that on September 13, 2007, plaintiff was assaulted in his cell by several prison guards, leaving him with "severe chronic pain in his chest, right arm and back." Id. at ¶¶ 30-31. Later, still in his cell, plaintiff told Lipton he was in pain and "show[ed] defendant Lipton abrasions and scrapes.... Lipton claimed she was going to come back and do [an] incident report on plaintiff's injuries and give him medical care for them. Then [she] left and never came back." Id. at ¶ 31.
II. Exhaustion of plaintiff's claims
The defendants argue that plaintiff did not submit any of his three allegations of excessive force to the grievance process at HDSP, thus leaving those claims unexhausted and subject to dismissal. Defendants do not include the allegation of inadequate medical care as a subject of their motion to dismiss. See Motion at 1 n.1 (Docket No. 57).*fn1
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 (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.
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, an inmate must pursue a grievance through every stage of the prison's administrative process before a civil rights action is filed, unless he can demonstrate a step was not available to him.
The term "available" in prisoners' civil rights cases stems directly from the PLRA, which bars an action "until such administrative remedies as are available are exhausted."
42 U.S.C. § 1997e(a). The Ninth Circuit has held that a prisoner has met the "availability" requirement if the prisoner attempted to complete the grievance process but was precluded by a prison official's mistake. See Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010). The reasoning in such cases is the prison official's action (or inaction) effectively rendered further exhaustion unavailable under the PLRA. Other circuit courts have held that a prisoner has satisfied the exhaustion requirement if prison officials prevent exhaustion through their own misconduct or fail to respond to a grievance within the applicable time limits. There too, courts have applied the "availability" requirement of the PLRA. See, e.g., Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) (administrative remedy not available if prison employees do not respond to a properly filed grievance or use affirmative misconduct to obstruct exhaustion).
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).
The defendants' principal evidence that plaintiff failed to exhaust any of his allegations of excessive force is a sworn declaration by D. Clark, Appeals Coordinator for CDCR at High Desert State Prison. Clark concludes that, based on his review of HDSP's appeals records, "there is no record of any appeal being accepted for review from Jones in September 2007 through January 2008 concerning such allegations." Declaration of D. Clark, ¶ 5 (Docket No. 57-4). The Clark declaration's only exhibit is a "printout of the records from the Inmate Appeals Tracking System concerning Jones' inmate appeals at HDSP." Id. at ¶ 7. The printout gives the date, log number and generic "issue" (e.g., "staff complaint" or "medical") averred in an inmate's grievance. The specific factual allegations of a particular grievance cannot be ascertained from the tracking system's record. See id., Ex. A.
In all, Clark summarizes the contents of seven appeals filed from September 2007 to January 2008, thus going well past the fifteen-day limitations period for each of plaintiff's allegations of excessive force. Each of those grievances is reflected on the appeals tracking system record attached to Clark's affidavit. Still, that record does not contain enough information for the court to determine what allegations the plaintiff actually submitted to the HDSP grievance process and thus corroborate Clark's summaries. Indeed it is well established that a prison appeals officer's summary of an inmate's grievance history is by itself inadequate to meet the burden of showing that a plaintiff failed to exhaust his administrative remedies before he filed suit. See Wyatt, 315 F.3d at 1120 (reversing the district court's dismissal for non-exhaustion because an appeals officer's affidavit did not "establish that the one appeal shown on the document relates to a subject other than the prison... regulations challenged here"). It would have been an easy matter to attach copies of the grievances plaintiff submitted while his fifteen-day window for each alleged incident was open. The defendants did not do that, and the system tracking record is not a sufficient substitute. Insofar as the Clark declaration and its lone attachment are concerned, "[t]here is no evidence... establishing that the 'Appeal Record' is what defendants say it is." Id.
1. Alleged incident of September 21, 2007
Clark's affidavit states plaintiff filed two staff complaints around the time defendant Bainbridge used excessive force against plaintiff on September 21, 2007. One grievance was received that same day, but Clark asserts that it dealt with an event that happened on September 13. He states another grievance was received on October 4, but he says it concerned plaintiff's allegation that a non-party officer aimed a loaded rifle at him without cause. Again, mere summaries of these appeals are insufficient to meet the defendants' burden to prove non-exhaustion.
The defendants do not support their argument with just the Clark declaration, however. They acknowledge that plaintiff attached two grievances to the original complaint, marked Exhibits "D" and "E." Only Exhibit D is potentially relevant here.*fn3 It is an administrative appeal plaintiff submitted September 30, 2007, nine days after defendant Bainbridge allegedly used excessive force on plaintiff. Plaintiff's principal complaint in that appeal is directed at an Officer Vincent, the guard who allegedly aimed a loaded rifle at plaintiff, an incident that is not a subject of this case. However, the grievance form also contains a more general reference to plaintiff's "fear that... officers will... come in [the] cell and assault me again." Original Complaint, Exhibit D at 48 (Docket No. 1). According to Estelle, supra, the ambiguity raised by this reference to prior assaults by officers should be resolved in plaintiff's favor in determining whether he exhausted his allegation that defendant Bainbridge used excessive force on September 21. However, even giving plaintiff that benefit of the doubt, it is clear that plaintiff focused solely on his allegation against Officer Vincent through the remaining stages of the appeals process. His appeals of the decisions at the first and second appellate levels do not mention anything that could be construed as a complaint about defendant Bainbridge's conduct on September 21. See id. at 49. Even if he was referring to defendant Bainbridge at the beginning of this particular grievance, then, he abandoned that part of his complaint in the last two stages of his appeal.
The only remaining appeal that could plausibly demonstrate exhaustion of the September 21 incident is the grievance assigned as Log No. HDSP-D-07-03212, which was received at the first formal level of review on the same day. Again, defendants have inexplicably failed to submit a copy of that appeal. However, plaintiff has provided it as Exhibit A to his opposition to the motion for summary judgment. Plaintiff submitted Log No. HDSP-D-07-03212 on September 16, 2007. See Plaintiff's Opp'n to Summary Judgment, Exhibit A at 15 (Docket No. 61). That date precedes the alleged incident of September 21, so it cannot be evidence of exhaustion for the first claim against defendant Bainbridge.
Having reviewed the record, the court concludes that plaintiff did not exhaust any claim related to defendant Bainbridge's alleged use of excessive force on September 21, ...