FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed a civil rights action seeking relief under 42 U.S.C. § 1983. On April 11, 2012, plaintiff filed his amended complaint. (Doc. No. 14.) On April 25, 2012 the court screened the amended complaint, found that it stated a cognizable Eighth Amendment claim for failure to protect and authorized service solely upon defendant Ingwerson. (Doc. No. 15.)*fn1 This matter is now before the court on defendant Ingwerson's motion to dismiss due to plaintiff's failure to exhaust his administrative remedies prior to filing suit. Plaintiff has filed an opposition to the motion and defendant has filed a reply.
In his amended complaint plaintiff alleges as follows. On July 28, 2007, he was told to report to defendant Ingwerson*fn2 in front of the prison program office. (Am. Compl. at 3.) There, defendant Ingwerson informed plaintiff that his assistance was needed to help with consolidating prisoner bed moves. Defendant Ingwerson ordered plaintiff to stay on the yard while Ingwerson went into the program office. Plaintiff informed defendant Ingwerson that it was not his assigned yard time, but remained on the yard. As defendant Ingwerson was walking into the program office he stopped and asked plaintiff if he was aware that a disturbance may arise, to which plaintiff answered that he was not. (Id.) Minutes later a group of Hispanic inmates attacked plaintiff and several other African American inmates. (Id. at 4.) Plaintiff received two stab wounds to the chest during this attack. Plaintiff claims that defendant Ingwerson was deliberately indifferent to his safety in violation of plaintiff's Eighth Amendment rights and failed to protect him by standing aside as the attack on plaintiff took place. (Id.)
I. Defendant Sergeant Ingwerson's Motion
Counsel on behalf of defendant Ingwerson has moved to dismiss this action arguing that plaintiff failed to exhaust his administrative remedies prior to bringing suit as required. Specifically, defense counsel contends that plaintiff did not exhaust his administrative remedies because he failed to obtain a decision at the third-level of administrative review on the claim he asserts in this civil action. Defense counsel argues that the Office of Appeals, which receives and maintains inmate appeals at the third level of review, has not accepted and denied a grievance from plaintiff regarding this claim. (Def.'s Mot. to Dismiss at 2-3; Doc. No. 21.)
II. Plaintiff's Opposition
In opposition to the pending motion to dismiss plaintiff implicitly concedes that he did not pursue an inmate appeal with respect to the incident in question through the third level of administrative review prior to filing suit. Rather, plaintiff essentially argues that the appeals coordinator improperly screened out his inmate appeals, thereby blocking him from pursuing his administrative remedies. Plaintiff contends that in responding to his inmate appeals the appeals coordinator did not provide sufficiently detailed instructions as to how plaintiff should correct any deficiency in the appeal forms. Plaintiff also suggests that prison officials' refusal to respond to a citizen's complaint filed by his mother prevented him from exhausting administrative remedies. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 2-6 ; Doc. No. 25.)
Defense counsel asserts that the appeals coordinator properly screened out and rejected plaintiff's inmate appeals because they were not timely filed and that plaintiff has failed to show that he did not have the opportunity to file an inmate appeal within the prescribed time. Defense counsel also argues that plaintiff has failed to provide any evidence that the appeals coordinator screened out his inmate appeal for any improper reason. Finally, defense counsel points out that any reliance by plaintiff on regulations currently governing the inmate appeals process is misplaced because those procedures did not apply in 2007, the year the incident and the inmate appeal submissions in question took place. (Def.'s Reply to Opp'n to Mot. to Dismiss at 2-6; Doc. No. 26.)
I. Legal Standards Applicable to a Motion to Dismiss Pursuant to Non-Enumerated Rule 12(b) By the Prison Litigation Reform Act of 1995 ("PLRA"), Congress amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The United States Supreme Court has ruled that exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. Id. at 741 n.6. Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). The Supreme Court has also held that "to properly exhaust administrative remedies prisoners 'must complete the administrative review process in accordance with the applicable procedural rules,'  - rules that are defined not by the PLRA, but by the prison grievance process itself." Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) ("The California prison system's requirements 'define the boundaries of proper exhaustion.'") (quoting Jones, 549 U.S. at 218).
A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). In 2007, when the events in question occurred, California's Department of Corrections provided a four-step grievance process for prisoners who sought review of an administrative decision or perceived mistreatment. See Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 2009). That process provided that within fifteen working days of "the event or decision being appealed," the inmate must ordinarily have filed an "informal" appeal, through which "the appellant and staff involved in the action or decision attempt to resolve the grievance informally." Cal. Code Regs., tit. 15, §§ 3084.5(a), 3084.6(c) (2007). The informal level response must have been completed within ten working days. Id. § 3084.6(b)(1). However, this informal level of review was waived for appeals of alleged misconduct by a departmental peace officer. Id. §§ 3084.5(a)(3)(G), 3084.1(e). If the inmate was required to file an informal appeal and was not satisfied with the resolution of his grievance, he then had fifteen working days to proceed to the first formal level of review, normally conducted by an appeals coordinator. Id. §§ 3084.5(b), 3084.6(c). Following the first formal level of review were the second level of review, providing review ...