FINDINGS AND RECOMMENDATIONS ORDER AND
Plaintiff is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. On July 21, 2011, defendants Guillory,
Medina, and Melgoza ("defendants") moved to dismiss this action on the
ground that plaintiff failed to exhaust available administrative
remedies before filing the complaint in this action.*fn1
For the reasons stated below, the court finds that plaintiff
failed to exhaust his administrative remedies prior to filing suit and
therefore recommends that defendants' motion be granted.
This action proceeds on the October 15, 2010 complaint on plaintiff's claims that defendants were deliberately indifferent to plaintiff's safety. Dckt. Nos. 1, 8. Plaintiff alleges in his complaint that in late 2008, he was recruited by defendants Melgoza and Medina to participate in a confidential operation to identify individuals smuggling cell phones and tobacco into California State Prison-Solano. Dckt. No. 1 at 3.*fn2 Plaintiff claims defendants told him the operation was authorized by "high ranking authority figures." Id. Plaintiff alleges he agreed to assist these defendants because he was assured he would be transferred to California Medical Facility-Vacaville (CMF-Vacaville) in exchange for his assistance. Id at 4. After assisting defendants for eight months, plaintiff allegedly learned that the operation was not authorized by "Institutional Heads." Id.
As a result of the confidential operation, plaintiff was investigated by prison authorities for participating in illicit activities and consequently placed in Administrative Segregation (Ad Seg). Id. While in Ad Seg, plaintiff claims he had a meeting with defendant Medina, who assured plaintiff he would be removed from Ad Seg and three CDC "115" Rules Violation Reports, presumably issued because of his participation in the operation, would be removed from his central file prior to his upcoming annual classification review. Id at 5. Plaintiff alleges that defendants did not remove the reports, which caused plaintiff's inmate classification to be wrongfully elevated from a Level III security inmate to a Level IV. Id. Plaintiff alleges that his new classification resulted in a transfer to a Level IV facility, where he was attacked by two inmates. Id at 7. Defendants now move to dismiss this action on the ground that plaintiff failed to exhaust available administrative remedies prior to filing this action.
II. Exhaustion Under The PLRA
The Prison Litigation Reform Act ("PLRA") 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). "Prison conditions" subject to the exhaustion requirement have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prison . . . ." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint, but need only provide the level of detail required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case").
Prisoners who file grievances must use a form provided by the California Department of Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline the action requested. The grievance process, as defined by California regulations, has three levels of review to address an inmate's claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, § 3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Id. § 3084.1(b).
Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be "available," there must be the "possibility of some relief. . . ." Booth, 532 U.S. at 738. Relying on Booth, the Ninth Circuit has held:
[A] prisoner need not press on to exhaust further levels of review once he has received all "available" remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.
Although a motion to dismiss for failure to exhaust administrative remedies prior to filing suit is normally brought under Rule 12(b) of the Federal Rules of Civil Procedure, when ruling on such a motion requires the court to look beyond the pleadings in the context of disputed issues of fact the court must do so under "a procedure closely analogous to summary judgment." Wyatt, 315 F.3d at 1119, n.14. Because care must be taken not to resolve credibility on paper as it pertains to disputed issues of material fact, the undersigned applies the Rule 56 standards to exhaustion motions that require consideration of materials extrinsic to the complaint. See Chatman v. Felker, No. Civ. S-06-2912 LKK EFB, 2010 WL 3431806, at *2-3 (E.D. Cal. Aug. 31, 2010).
Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119. To bear this burden: a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case . . . . With regard to the latter category of evidence, information provided [to] the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, "available."
Brown, 422 F.3dat 936-37 (citations omitted).
On April 22, 2011, the court advised plaintiff of the requirements for opposing a motion to dismiss for failure to exhaust available administrative remedies as well as a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 ...