The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. On July 26, 2012, the court screened plaintiff's complaint pursuant to 28 U.S.C. § 1915A(a). The court found that plaintiff may proceed on claims arising under the Eighth Amendment against defendants Renner and Boucher and claims arising under the First Amendment against defendants Hibbits, Shaver*fn1 and Rodriguez. Defendants' motion to dismiss is before the court.*fn2
In his first claim, plaintiff asserts that on or around July 17, 2011, while he was incarcerated at High Desert State Prison (HDSP), defendants Renner and Boucher transported plaintiff to an appointment with an eye doctor. Plaintiff asserts that after Renner placed handcuffs on plaintiff, plaintiff complained that they were too tight. Plaintiff told Renner that the handcuffs were cutting off blood circulation to plaintiff's wrists and were causing plain. In response, Renner told plaintiff to "shut the fuck up." Plaintiff asked a second time that the handcuffs be loosened, but plaintiff's request was again denied. Plaintiff wore the handcuffs for eight hours (four hours on the way to the appointment, and four hours back from the appointment) which caused plaintiff extreme pain by cutting off blood circulation, cutting into plaintiff's skin and dislocating one of plaintiff's wrists. Plaintiff was also denied use of a bathroom during transport resulting in plaintiff urinating on himself. When plaintiff returned to High Desert with Renner and Boucher, he requested medical attention because he could not feel his hands and was bleeding. Renner and Boucher did not provide plaintiff with medical attention and instead placed plaintiff in his cell.
In his second claim, plaintiff asserts that during April 2012, he had a petition for collateral review pending in the California Supreme Court and he was asked by that court to provide certain information. Plaintiff requested prison officials permit plaintiff to review his legal property so that he could obtain the information requested by the California Supreme Court. A correctional lieutenant ordered defendants Hibbits and Rodriguez, officers in charge of inmate property in plaintiff's housing unit, to provide plaintiff with access to his legal material. Defendant Rodriguez did provide plaintiff with some material, but not the material he needed to submit to the California Supreme Court. Plaintiff requested access to the material he needed, but his requests were ignored by defendants Hibbits and Rodriguez. Plaintiff's California Supreme Court case was dismissed because he could not provide the documents requested.
As indicated above, the court previously found that plaintiff's complaint states a claim upon which plaintiff may proceed against defendant Shaver under the First Amendment. Pursuant to defendants' motion to dismiss, however, the court has reviewed plaintiff's complaint a second time and finds that plaintiff fails to state any valid claim against defendant Shaver as plaintiff fails to allege any specific facts with respect to Shaver. It appears that the court's order that plaintiff could proceed against defendant Shaver was the result of a drafting error. Accordingly, the court will recommend that defendant Shaver be dismissed.
Defendants argue plaintiff has failed to exhaust administrative remedies with respect to his claims. 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, which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). 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.
Administrative remedies must be "properly" exhausted which means use of all steps put forward by the agency. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Also, "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.
Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119.
On July 19, 2011, plaintiff submitted a grievance in which he complained about, among other things, the fact that handcuffs used during a trip to an eye doctor caused plaintiff pain and that defendants Renner and Boucher accompanied plaintiff on the trip. The grievance was denied on August 25, 2011. Mot. to Dismiss; Decl. of B. Cornelison, Ex. B at 1-2.
Plaintiff appealed to the second level on August 31, 2011 and the appeal was denied on October 17, 2011. Id. at 3. Plaintiff then appealed to the Director's Level on October 26, 2011. On December 8, 2011, the appeal was rejected and "returned to the HDSP Appeals Coordinator for further review and action." Mot. to Dismiss, Decl. of J.D. Lozano at ¶ 12. ...