The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the original complaint, filed October 14, 2010. (Dkt. No. 1.) On March 21, 2011, the previously assigned magistrate judge ruled that the complaint stated a cognizable Eighth Amendment claim as to defendants Vanleer, Qualls, Lindsay, and Rainwater. (Dkt. No. 6.) Pending before the court is defendants' September 19, 2011 motion to dismiss the complaint for failure to exhaust administrative remedies. (Dkt. No. 21.) Plaintiff filed an opposition to the motion, and defendants filed a reply. (Dkt. Nos. 25, 26.) For the reasons discussed below, the undersigned will recommend that defendants' motion be granted.
In the complaint, plaintiff alleges that on December 27, 2009, defendants used excessive force against him, in violation of the Eighth Amendment, while escorting him through the exercise yard at High Desert State Prison (HDSP). On the complaint form, in response to the question "Have you filed a grievance concerning the facts relating to this complaint?" plaintiff checked the box indicating "No." His explanation was that "the 115 was dropped Dec. 27, 2009." However, in response to the next question, "Is the grievance process completed?" plaintiff checked the box indicating "Yes." (Dkt. No. 1 at 2.)
Defendants assert in their motion to dismiss that "no appeals were accepted at any level of review concerning Defendants' alleged actions" on December 27, 2009. (Dkt. No. 21-1 at
3.) In support, they attach the declaration of D. Clark, an Appeals Coordinator at HDSP, who declares that "A review of grievances submitted by inmate Ruff (E-74808) discloses that between December 27, 2009, and October 14, 2010, he did not submit any grievances that were accepted for formal review at HDSP." (Dkt. No. 21-2.)
Defendants also attach the declaration of D. Foston, Chief of the Office of Appeals (OOA) for CDCR. Foston declares that:
Before January 28, 2011, to exhaust the appeal process, the inmate had to proceed through four levels of appeal: (1) informal resolution; (2) first formal level; (3) second level appeal to the institution head or designee; and (4) third level appeal to the director of CDCR. The informal and first level may be bypassed in certain circumstances . .
[A]n inmate seeking judicial relief in excess of administrative remedies granted at any level must present his or her claim to the third level, and this relief remains unexhausted until the examiner renders a decision at the third level.
The OOA, also known as the "third level" appeal, concludes the inmate's administrative remedy process. . . .
The OOA's records disclose that, between December 27, 2009 and October 14, 2010, inmate Ruff (E-74808) submitted no appeals that the OOA accepted for third level review.
In opposition to the motion to dismiss, plaintiff does not assert that he filed any inmate grievance regarding defendants' alleged conduct on December 27, 2009. Rather, he argues that his failure to file a grievance should be excused because "he was afraid for his life ...