FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action brought under 42 U.S.C. § 1983. He proceeds on an Eighth Amendment claim against defendant Smith based on an alleged use of excessive force on December 3, 2009 at High Desert State Prison. Defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b), on the ground that plaintiff failed to exhaust available administrative remedies prior to filing suit. Dckt. No. 20.*fn1 For the following reasons, defendant's motion must be granted.
I. Exhaustion under the PLRA
The Prison Litigation Reform Act ("PLRA") 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). "Prison conditions" subject to the exhaustion requirement have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prison . . . ." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint, but need only provide the level of detail required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case").
Prisoners who file grievances must use a form provided by the California Department of Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline the action requested. The grievance process, as defined by California regulations, has three levels of review to address an inmate's claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, § 3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Id. § 3084.1(b).
Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be "available," there must be the "possibility of some relief . . . ." Booth, 532 U.S. at 738. Relying on Booth, the Ninth Circuit has held:
[A] prisoner need not press on to exhaust further levels of review once he has received all "available" remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.
Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
In the Ninth Circuit, motions to dismiss for failure to exhaust administrative remedies are normally brought under Rule 12(b) of the Federal Rules of Civil Procedure. See Albino v. Baca, 697 F.3d 1023, 1029 (9th Cir. 2012). Nonetheless, it remains well established that credibility of witnesses over material factual disputes cannot be resolved on paper. Thus, when ruling on an exhaustion motion requires the court to look beyond the pleadings in the context of disputed issues of fact, the court must do so under "a procedure closely analogous to summary judgment." Wyatt v. Terhune, 315 F.3d 1108, 1119, n.14 (9th Cir. 2003). Doing so ensures that a process is followed to test whether disputes over facts pertaining to whether plaintiff actually exhausted available remedies are truly genuine and material and therefore warrant live testimony, or whether the dispute(s) may be disposed of by unrefuted declarations and exhibits. Therefore, following the suggestion in Wyatt, and because care must be taken not to resolve credibility on paper if it pertains to disputed issues of fact that are material to the outcome, the undersigned applies the Rule 56 standards to exhaustion motions that require consideration of materials extrinsic to the complaint.*fn2 See Chatman v. Felker, No. Civ. S-06-2912 LKK EFB, 2010 WL 3431806, at *2-3 (E.D. Cal. Aug. 31, 2010).
Failure to exhaust is an affirmative defense in the sense that defendants bear the burden of proving plaintiff did not exhaust available remedies. Wyatt, 315 F.3d at 1119. To bear this burden:
a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case . . . . With regard to the latter category of evidence, information provided [to] the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, "available."
Brown, 422 F.3d at 936-37 (citations omitted).
Plaintiff alleges that, on December 3, 2009, he was injured due to the use of excessive force by defendant Smith. Evidence submitted with defendant's motion to dismiss demonstrates that plaintiff filed one prison appeal related to this incident, log no. HDSP-Z-10-00116. Dckt. No. 20-3, Cornelison Decl. ¶ 4. That appeal was granted in part at the first level. Id. ¶ 4, Ex. A (Dckt. No. 20-4 at 3-5). Plaintiff attempted to pursue second level review but the appeal was screened out for attaching unnecessary documents. Id. ¶ 6, Ex. A (Dckt. No. 20-5 at 7; Dckt. No. 20-6 at 2); see also Cal. Code Regs. tit. 15, § 3084.4(c) (2010).*fn3 Plaintiff was twice given the opportunity to remedy this problem by removing the excessive documents. Dckt. No. 20-3, Cornelison Decl. ¶ 6. However, he did not comply with these instructions and his appeal was cancelled. Id.; see also Dckt. No. 1, Compl. § C.Plaintiff then filed an appeal at the third and final level but it was not accepted because it failed to comply with the lower level's procedural requirements. Dckt. No. 20-7, Lozano. Decl. ¶¶ 7-8.
The evidence submitted with defendant's motion demonstrates that plaintiff's appeal was never reviewed at the second or third levels because plaintiff ...