The opinion of the court was delivered by: Elizabeth D. Laporte United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT; GRANTING DENYING PLAINTIFF'S MOTION TO PLAINTIFF'S MOTION TO STRIKE;
Defendants County of Sonoma, Sonoma County Sheriff's Department, Bill Cogbill, Lewis Lincoln, Daniel Cortez and Eduardo Espino (the "County Defendants") filed a motion to dismiss this action arising from injuries sustained by Plaintiff Eric James Baker on or about September 8, 2007, while he was in the custody of Sonoma County at the Sonoma County Main Adult Detention 18 Facility. Doc. no. 30. Defendants California Forensic Medical Group and Dr. James Luders (the "CFMG Defendants") filed a statement of non-opposition to the motion to dismiss. Doc. no. 44. The Court held a hearing on the motion to dismiss on January 27, 2009. For the reasons stated at the hearing and below, the Court issues the following Order.
According to allegations in the First Amended Complaint, on or about September 8, 2007, law enforcement officials of the County and Sheriff's Department took Plaintiff into custody at the Sonoma County Main Adult Detention Facility. FAC ¶ 16. Defendant Corrections Officer Lewis 26 Lincoln handcuffed Plaintiff's left wrist tightly, and when Plaintiff complained of the pain, he was told to "shut up." FAC ¶ 17. After Plaintiff complained again, Defendant Lincoln twice slammed Plaintiff's head into a cement wall and told him to "shut up." FAC ¶¶ 17, 18. Defendant Lincoln Defendants.
EXPAND RECORD and Defendant Daniel Cortez took Plaintiff to his cell and forced him onto a bunk bed by lifting his wrists behind his back and jammed his face into the wall, scraping the skin off Plaintiff's shins against the metal bed. FAC ¶ 19. Defendants Lincoln and Cortez removed the handcuffs and left Plaintiff in the cell, ignoring his injuries and alleged need for medical attention. FAC ¶ 20. Plaintiff alleges that as a result of this beating, he sustained a depressed, comminuted fracture in the zygomatic arch, the bone on the side of the cheekbone along the ear. FAC ¶ 35. Plaintiff suffered facial pain, swelling and bruising, making it difficult to open his mouth or right eye or to yawn, eat, breathe or hear out of his right ear. FAC ¶ 21. Plaintiff further alleges that from about September 9 to September 12, 2007, his requests for pain medication, right to speak to physician, medical request form and grievance forms were denied.
FAC ¶ 23. His requests for his medications for depression and anxiety were also denied. Id. On or about September 19, 2007, Dr. Harpford examined Plaintiff and ordered x-rays. FAC ¶¶ 26, 29. On or about September 20, 2007, Plaintiff was given pain medication, but the jail stopped providing medication on or about September 23, 2007. FAC ¶¶ , 28. Defendant Espino allegedly refused to provide Plaintiff with a grievance form for the withdrawal and/or denial of his medications. FAC ¶ 28. On or about September 25, 2007, Plaintiff was taken for x-rays, and the diagnostic report 18 indicated no observable fractures but that further evaluation with computed tomography should be determined clinically. FAC ¶ 29. Dr. Luders, working for Defendant CFMG on contract to the County and Sheriff's Department, informed Plaintiff that the x-rays were normal. FAC ¶ 29. Plaintiff continued to experience headache, numbness in his teeth, difficulty breathing and eating, blurred vision, loss of balance and depth perception and trouble concentrating and holding objects. FAC ¶¶ 31, 32. On or about October 1, 2007, Dr. Harpford informed Plaintiff that the x-rays showed the facial plate in an abnormal position, restarted Plaintiff's pain medications with increased dosage, and later ordered more x-rays and CT scans. FAC ¶¶ 31, 32. Plaintiff was diagnosed with a depressed, comminuted fracture of the right zygomatic arch, missing teeth, limited facial movement, and a bony prominence on his right orbital wall. FAC ¶¶ 35, 36.
Plaintiff alleges that jail personnel erratically administered or denied Plaintiff his pain medications, continuing until Plaintiff's release in May 2008. FAC ¶¶ 33, 34, 39. Following Plaintiff's CT scan and dentist visit, Dr. Luders responded to Plaintiff's request for medical attention, diagnosed an infection, and prescribed antibiotics. FAC ¶¶ 35-37. Dr. Luders informed Plaintiff that the CT scans were normal. FAC ¶ 37. On or about November 1, 2007, Plaintiff was examined by an oral surgeon who confirmed the diagnosis of a depressed, comminuted fracture of the right zygomatic arch. FAC ¶ 38.
The oral surgeon indicated that if Plaintiff had received timely, adequate medical intervention, it may have been possible to reset the bones, but it was too late to do so, advising that Plaintiff wait a year for his face to heal and undergo surgery. FAC ¶ 38.
A motion to dismiss is appropriate when the plaintiff's allegations fail to "state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A court should not grant dismissal unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim." Conley v. 15 Gibson, 355 U.S. 41, 45-46 (1957). Plaintiff needs to plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). In analyzing a motion to dismiss, the court must accept as true all allegations of material facts set forth in the complaint, and draw reasonable inferences in the light most favorable to the plaintiff. Pareto v. Fed. Deposit Ins. Co., 139 F.3d 696, 699 (9th Cir. 1998). Dismissal without leave to amend is improper, unless no amendment could possibly cure the pleading's deficiencies. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998). DISCUSSION I. Failure to Exhaust Remedies A. Prison Litigation Reform Act Defendants do not dispute that Plaintiff was not incarcerated at the time he filed suit. Defendants contend that Plaintiff should nevertheless be held to the exhaustion requirement of the Prison Litigation Reform Act of 1995 ("PLRA"), which provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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). Plaintiff counters that he was not incarcerated at the time he filed his complaint, and therefore is not bound by the requirement under the PLRA to exhaust administrative remedies. Although the Ninth Circuit has not directly answered the question whether the PLRA exhaustion requirement applies to former prisoners after they are released from incarceration, the Ninth Circuit has held that an individual civilly committed pursuant to California's Sexually Violent Predators Act is not a "prisoner" within meaning of 42 U.S.C. § 1997e. The Ninth Circuit reasoned that only individuals who, at the time they seek to file their civil actions, are detained as a result of being accused of, convicted of, or sentenced for criminal offenses, are "prisoners" within the definition of 42 U.S.C. § 1997e. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). Some district courts, distinguishing Page on the ground that Page differentiated civil commitment from criminal sanctions, have held that the PLRA exhaustion requirement applied to prisoners who file suit after their release. See Morgan v. Maricopa Co., 259 F. Supp. 2d 985 (D. 15 Ariz. 2003) (granting defendants' motion for summary judgment and dismissing the case for failure to exhaust); Mason v. Co. of San Mateo, 2005 WL 3957924 (N.D. Cal. Jan. 26, 2005) (granting motion to dismiss for failure to exhaust, citing Porter v. Nussle, 534 U.S. 516, 532 (2002) and Booth v. Churner, 532 U.S. 731, 739-40 (2001)). Mason reasoned that the PLRA's exhaustion requirement "'applies to all inmate suits about prison life,'" and that exempting former prisoners from the exhaustion requirement would thwart the legislative intent of the PLRA to afford corrections officers the opportunity to address complaints internally and to develop an administrative record for cases that reach judicial review. 2005 WL 3957924 at *2-3 (quoting Porter, 534 U.S. at 532). Several judges within the Ninth Circuit, including in this district, however, have concluded that the PLRA exhaustion requirement does not apply to former prisoners who file federal claims after they are released from custody, based on the plain language of the statute. Kritenbrink v. Crawford, 313 F.Supp.2d 1043, 1047 (D. Nev. 2004); Valdivia v. Co. of Santa Cruz, 2008 WL 4065873 (N.D. Cal. Aug. 27, 2008) (exhaustion requirement of PLRA does not apply to former inmates); Spears v. City and County of San Francisco, 2008 WL 2812022 (N.D. Cal. Jul. 21, 2008).
In Valdivia, the court declined to adopt the reasoning of Mason and Morgan, holding that "[o]n its face, the statutory language indicates that the PLRA's requirements only apply to plaintiffs who are currently incarcerated or detained." 2008 WL 4065873 at *3. Valdivia noted that both Booth and Porter, on which Mason and Morgan relied, concerned plaintiffs who were incarcerated when they filed their respective complaints, and neither Supreme Court decision addressed the issue of whether the PLRA's exhaustion requirement applies to former inmates. Id. Defendants also cite Woodford v. Ngo, 548 U.S. 81 (2006) in support of their argument that the exhaustion requirement under the PLRA must be construed broadly, but in Woodford, as in Booth and Porter, the plaintiff was incarcerated at the time he filed in federal court. 548 U.S. at 86-87. Valdivia also noted that "every circuit court that has addressed the issue has found that the PLRA's exhaustion requirement does not apply to out-of-custody plaintiffs." 2008 WL 4065873 at *3. See id. at *2 n.2. See also Spears, 2008 WL 2812022 at *4 (noting that the courts of appeals that have considered this issue have all concluded that it is the plaintiff's status at the time he files suit that determines whether the PLRA exhaustion requirement applies). In the absence of appellate authority to the contrary, the Court adopts the reasoning of Valdivia to conclude that the PLRA exhaustion requirement does not apply to Plaintiff's claims, which were filed after he was released from custody. Because the Court concludes that the PLRA exhaustion requirement does not apply, the Court need not reach the question of whether administrative remedies were available to Plaintiff, or whether Defendants are estopped from asserting the exhaustion defense. Accordingly, the motion to dismiss the § 1983 claims (First, Second and Third Causes of Action) on the ground of failure to exhaust is denied. Plaintiff's Motion to Expand Record on County Defendants' Motion to Dismiss is denied as untimely (docket no. 49).
Plaintiff contends that Defendants improperly raise a new ground for their motion to dismiss in their reply brief, namely, that California law requires a prisoner to exhaust administrative remedies before filing state law claims. Defendants' opening brief on the motion seeks relief solely on the basis of failure to exhaust pursuant to 42 U.S.C. § 1997e(a), and Defendants' argument in their reply brief on the exhaustion requirement under state law spans only three paragraphs. The Ninth Circuit authority cited by Defendants in their opening brief, Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), only addresses the exhaustion requirement under the PLRA, not under state law. Although Plaintiff argued in his opposition brief that his state law claims are not subject to the exhaustion requirement under the PLRA, it cannot be fairly said that Plaintiff argued that there is no exhaustion requirement as to his state law claims, as Defendants suggest in their reply brief. Thus, the Court agrees with Plaintiff that Defendants ...