FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a complaint filed pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss plaintiff's complaint, filed January 30, 2012, on the grounds that plaintiff failed to exhaust his administrative remedies prior to filing the instant action. Plaintiff opposes the motion.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
At all times relevant to this action, plaintiff was an inmate at High Desert State Prison ("HDSP") in Susanville, California. The individual defendants were employed at HDSP in various capacities, including teacher, principal, and education testing instructor and transcript coordinator. This action arises from the defendants' alleged failure to accommodate plaintiff's severe learning disability, in violation of plaintiff's Eighth and Fourteenth Amendment rights and in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Plaintiff seeks injunctive relief, as well as monetary and punitive damages.
On March 20, 2011, plaintiff filed a Reasonable Modification or Accommodation Request form requesting special accommodation in the education program based on his learning disability. See Clark Decl., Ex. A. This request was assigned Appeal Log # HDSP-B-11-00501. Id. On April 8, 2011, plaintiff's request was denied. Id. On April 20, 2011, plaintiff's request was denied at the second level of review. Clark Decl. ¶¶ 3-4.
Plaintiff thereafter filed numerous additional appeals. On November 14, 2011, January 3, 2012, January 18, 2012, and January 27, 2012, plaintiff's appeals were denied as duplicative of Appeal Log # HDSP-B-11-00501. See Pl.'s Opp'n (Doc No. 16 at 8-11).
On February 28, 2012, plaintiff sent a letter to the Chief of the Office of Appeals at the California Department of Corrections and Rehabilitation ("CDCR"), in which he claimed that he had not received a response to an appeal that he filed "a very long time ago." Doc. No. 16 at 12.
On March 5, 2012 and March 7, 2012, the Chief of the CDCR Office of Appeals notified plaintiff by letter that plaintiff has been attempting to submit an appeal that had been previously cancelled. Doc. No. 16 at 13-14. Plaintiff was warned that if he continued to file previously-cancelled appeals, he would be placed on appeal restriction. Id.
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding the conditions of their confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740, n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734.*fn1
A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Brown, 422 F.3d at 936-37.
As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84.
The State of California provides its prisoners the right to appeal administratively "any departmental decision, action, condition or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). It also provides them the right to file appeals alleging misconduct by correctional officers and officials. Id. at § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the CDCR. Barry v. Ratelle, 985 F.Supp. 1235, 1237 ...