ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Therein plaintiff alleges that defendant Ritola failed to properly train plaintiff for his prison job which resulted in an injury to plaintiff's finger and that this alleged failure to train was in violation of plaintiff's rights under the Eighth Amendment. Before the court is defendant Ritola's Rule 12(b) motion to dismiss this action due to plaintiff's failure to exhaust his administrative remedies prior to filing suit as required.
I. Exhaustion Requirement
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. See 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. See 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. See Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). "[T]o 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).
In California, prisoners may appeal "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Most appeals progress through three levels of review. See id. § 3084.7. The third level of review constitutes the decision of the Secretary of the California Department of Corrections and Rehabilitation and exhausts a prisoner's administrative remedies. See id. § 3084.7(d)(3). 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).
The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative defense. See Jones, 549 U.S. at 216 ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints."); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003). The defendants bear the burden of raising and proving the absence of exhaustion. Wyatt, 315 F.3d at 1119. That burden, however, is "very low." Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012). The defendants need only show the existence of a grievance procedure that plaintiff did not use. Id. (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996) and Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005)).
A prisoner may be excused from complying with the PLRA's exhaustion requirement if he establishes that the existing administrative remedies were effectively unavailable to him. Albino, 697 F.3d at 1031. For example, where prison officials improperly screen out inmate grievances, they render administrative remedies effectively unavailable. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such a case, "the inmate cannot pursue the necessary sequence of appeals . . . ." Id. See also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (excusing an inmate's failure to exhaust because he was precluded from exhausting administrative remedies by a warden's mistaken instruction to him that a particular unavailable document was needed for him to pursue his inmate appeal).
If the district court concludes that the prisoner has not exhausted administrative remedies and is not excused from doing so, "the proper remedy is dismissal of the claim without prejudice." Wyatt, 315 F.3d at 1120. See also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). On the other hand, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
II. Defendant's Motion to Dismiss
Defendant Ritola argues that plaintiff did not exhaust his administrative remedies failed to pursue his administrative inmate appeal to the third level of review. According to J.D. Lozano, the Chief of the Office of Appeals (OOA) for the California Department of Corrections and Rehabilitation (CDCR), between October 26, 2009 (when plaintiff allegedly sustained his injury) and May 16, 2011 (when plaintiff's complaint was received by this court for filing), plaintiff did not submit any inmate appeals that were accepted by the OOA for a third level review. (Doc. No. 16-3, ¶ 3 at 1.) Plaintiff did submit inmate appeals (HDSP-09-02298) on October 26, 2009 and May 16, 2001 to the OOA but they were rejected because plaintiff had failed to pursue his appeal at the second level of review before proceeding to the third level of review. (Id. ¶¶ 5-6 at 2.)
Appeals Coordinator Cornelison has submitted a declaration confirming that plaintiff submitted an inmate appeal at the first level of review. (Doc. No. 16-4 at 2.) Inmate log #HDSP-09-02298 is attached to Cornelison's declaration and in that inmate appeal, plaintiff complained that he was injured while assigned to his prison job and operating the vegetable cutting machine. (Id. at 4.) Therein, plaintiff requested workers compensation and training for prisoners operating the cutting machine. (Id.) On December 1, 2009, at the informal level of review, plaintiff's inmate appeal was partially granted as follows:
Partially Granted - All paperwork involving your accident has been turned into the proper channels. It is up to the claim workers to determine compensation for the injury.
Granted - You started your job on 7/23/2009. You signed your job description upon initial training, and since, have been trained on several other occasions. Training will continue and is an essential function of your job. Thank you for your participation.
(Id. at 8.) At the first level of review, plaintiff's inmate appeal was again partially granted with the ...