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. 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.*fn1
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
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, a 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 allegedly 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. Procedural background
On February 9, 2012, the undersigned entered findings and recommendations on the issues presented in defendants' motion to dismiss and motion for summary judgment. The undersigned rejected defendants' argument that plaintiff had failed to exhaust his claims that he was subjected to excessive force on October 16, 2007, and November 6, 2007, explaining:
Plaintiff claims that defendant Bainbridge again used excessive force against him on October 16, 2007. He also claims that defendants Follosoco and Lipton used excessive force on November 6, 2007. According to the appeals tracking record [submitted by defendants], three appeals were received within fifteen days of those incidents: one on October 16, one on October 23, and one on November 15. Neither party has submitted copies of those appeals. Without more, the court cannot find that defendants have carried their burden on their argument that plaintiff failed to exhaust these allegations of excessive force. See Wyatt, supra. Therefore the court should deny the motion to dismiss as to those two claims and proceed to a summary judgment analysis of them and the claim for deliberate indifference to a serious medical need.
Vacated Findings and Recommendations at 7 (Docket No. 71).*fn2
The undersigned went on to recommend that the motion for
summary judgment be granted as to the claim arising on November 6,
2007, but denied as to the claims arising on October 16, 2007.
Defendants filed their objections to the findings and recommendations on February 29, 2012. In that filing, they submitted for the first time the documentary evidence of plaintiff's history of administrative grievances that had been lacking to support their motion to dismiss for failure to exhaust. The court vacated the findings and recommendations and required defendants' counsel to show cause why sanctions should not be entered for unnecessary delay caused by withholding documentary evidence that could have proven the case for dismissal. The order to show cause was ultimately discharged without the imposition of sanctions, but the court's acceptance of the tardily submitted exhaustion documents required it to reconsider the motion to dismiss. Plaintiff filed his objections to the "new" exhaustion documents on March 12, 2012. The court is now ready to rule on the motion to dismiss in light of the revised record, and on the still-pending motion for summary judgment.
III. 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 against Lipton as a subject of their motion to dismiss. See Motion at 1 n.1 (Docket No. 57).
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.*fn3 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 includes "printout of the records from the Inmate Appeals Tracking System concerning Jones' inmate appeals at HDSP" as an exhibit. Id. at ¶ 7. The printout gives the date, log number and generic "issue" (e.g., "staff ...