The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff Chavez, an inmate of the California Department of Corrections and Rehabilitation ("CDCR"), proceeds pro se with a verified civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff asserts claims under the First and Eighth Amendments against defendant Granadoz, the sole defendant. On May 30, 2012, defendant moved to dismiss the complaint on the ground that plaintiff failed to exhaust administrative remedies before filing suit. Plaintiff filed an opposition to the motion and defendant filed a reply. On January 8, 2013, the undersigned issued findings and recommendations recommending that the motion to dismiss be granted. Subsequently, plaintiff filed objections accompanied by a document styled as a "Request for Judicial Notice..." in which he asked the court to consider new evidence and argument not previously before the court in consideration of defendant's motion to dismiss. Respondent made no response to plaintiff's objections. The undersigned exercised discretion to consider the new argument submitted by petitioner (see Jones v. Blanas, 393 F.3d 918, 935 (9th Cir. 2004)) and, based thereupon, vacated the findings and recommendations entered January 8, 2013. For the reasons that follow, it will be recommended that defendant's motion to dismiss be denied.
I. Allegations of the Complaint
The events giving rise to this lawsuit occurred at California State Prison- Solano (CSP-Solano), where plaintiff was incarcerated and defendant was employed at all times relevant. According to the complaint, during January or February of 2010, defendant searched the cell of another inmate, to whom plaintiff had loaned his radio. (Id. at 10.) Defendant indicated to plaintiff that defendant was going to confiscate the radio. (Id.) Plaintiff responded that plaintiff was going to file a staff complaint and defendant stated "Oh I can play that game better than you," which plaintiff took to be a threat to retaliate if plaintiff filed a grievance. (Id.)
On February 14, 2010, plaintiff was standing at his cell door when he saw defendant engage in a short conversation with inmate Barrera and then return to the officer's podium. (Id. at 5-6.) Approximately 15 minutes later, an unnamed officer, Doe 1, opened plaintiff's cell door for early worker's chow release. (Id. at 6.) As plaintiff proceeded down the stairs, Doe 1 released the cell door of inmate Barrera, who ran past defendant, up to plaintiff, and began stabbing plaintiff in the left eye with a metal weapon and kicking plaintiff with his feet. (Id.) Defendant did not make any attempt to stop the assault and did not activate the security alarm for approximately 5-10 seconds. (Id.) Plaintiff sustained injuries including stab wounds to his left eye, cuts on his head, bruises, and abrasions. (Id. at 7.)
Plaintiff was transported to the emergency room at UC Davis Medical Center where surgery was performed on his left eye. (Id. at 3, 8.) On February 19, 2010, he was discharged from the hospital and placed in the Administrative Segregation Unit (ASU) at CSPSolano. (Id. at 3, 8-9.) Once there, Doe 1 approached plaintiff and stated "...Oh Mr. Chavez, I'm so sorry about what happened. I'm not the regular and I told [defendant] that inmate Barrera was not on the release roster but he insisted and opened the door[.]" (Id. at 9.) Plaintiff alleges that defendant knew that Barerra was not supposed to be released at the time of the assault, and that the assault resulted from defendant's desire to retaliate against him "for exercising his right to complain[ ] of reprisals for [defendant] keeping his radio." (Id. at 9-10.)
Plaintiff's inmate appeal (CDCR-602) regarding the events of February 14, 2010 was due March 5, 2010, however he was not able to timely file it due to being in excruciating pain and suffering from mental stress from the assault. (Id. at 3.) Plaintiff requested unnamed staff to assist him in preparing his inmate appeal pursuant to CCR 3084.1(b), however, staff refused. (Id. at 3-4.) On March 23, 2010, plaintiff was transported back to UC Davis for a follow-up appointment and on March 24, 2010 another surgery was performed during which his left eye was removed and an implant inserted. (Id. at 4, 12.) Subsequently he was transported back to ASU at CSP-Solano on March 24, 2010. (Id.)
Plaintiff commenced this federal action on April 15, 2011. (Dkt. No. 1.) For screening purposes, it was determined that plaintiff stated cognizable claims that Granadoz violated his rights under the First and Eighth Amendments. (See Dkt. No. 10 at 3.)
II. Exhaustion of Administrative Remedies
Pursuant to the Prison Litigation Reform Act ("PLRA"): No 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 a jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). Compliance with the exhaustion requirement is mandatory. Booth v. Churner, 532 U.S. 731, 739, 741 (2001) (holding that prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process).
The State of California's prison regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See 15 Cal. Code Regs. §§ 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. All steps must be completed before a civil rights action is filed, unless there is an exception; 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). In order to properly exhaust in compliance with the exhaustion requirement of section 1997e(a), a prisoner must comply with applicable procedural rules and time requirements. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
"The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Jones v. Bock, 549 U.S. 199, 218 (2007); see also McCollum v. CDCR, 647 F.3d 870, 876 (2011) ("Whether an inmate's claim has been exhausted is determined by reference to the prison's own grievance requirements, which necessitate that the inmate ...