ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. This action is before the undersigned
pursuant to Eastern District of California Local Rule 302(c)(17). See
28 U.S.C. § 636(b)(1). Defendants Mimis and Sisto's ("defendants")
have filed a second motion to dismiss pursuant to Federal Rules of
Civil Procedure ("Rule") 12(b) and 12(b)(6). Dckt. No. 22.*fn1
Defendants apparently overlooked Rule 12(g)(2)'s limitation
on further motions, as this is their second Rule 12 motion to dismiss.
See Dckt. No. 17. The earlier motion argued that plaintiff failed to
state a claim as to his equal protection claim. Id. That motion was denied. Dckt. Nos. 29 and 32.
The instant motion argues that the complaint is time barred, that
plaintiff failed to exhaust, and that he fails to state a claim as to
his Eighth Amendment allegations. Though it appears defendants could,
and should have included all of their defenses in a single Rule 12
motion or the latter motion separately under Rule 56, the undersigned
will address defendants' second motion for the sake of judicial
economy. As discussed below, the issue of exhaustion is analyzed under
Rule 56 standards, and for the reasons stated herein, plaintiff has
failed to exhaust available administrative remedies.
This action proceeds on plaintiff's January 26, 2010 complaint premised on Eighth Amendment and equal protection claims. Dckt. Nos. 1, 6. Plaintiff alleges that California State Prison, Solano has a policy of only providing heat to inmates on one side of each housing unit during the winter and that defendants intentionally denied him heat during the winter months from 2003 through 2010. Plaintiff alleges that as of December 2009, the heating ducts were not even connected to air vents inside the dormitory and that it gets so cold, "the walls sweat." Dckt. No. 1at 13, 19.*fn2 Plaintiff alleges that in the winter it is often warmer outside than it is inside, where the temperatures range from the high 40s to the low 50s. Id. at 40. He claims to have been "tortured" every winter by the lack of heat. Id. at 12. He also alleges that prison officials informed him that they do not heat both sides of the housing units because "it will become too stuffy." Id. at 13, 18.
Defendants move to dismiss on the ground that plaintiff failed to exhaust his administrative remedies prior to filing suit. Defendants also move to dismiss for failure to state a claim because: (1) the alleged conditions of confinement do not amount to cruel and unusual punishment in violation of the Eighth Amendment; (2) plaintiff has failed to specifically allege facts linking defendants to the claimed violations; and (3) claims based on conditions existing before January 2006 are barred by the statute of limitations.
II. Exhaustion of Administrative Remedies
A. 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 v. Terhune, 315 F.3d 1108, 1119, n.14 (9th Cir. 2003). 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 ...