ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action seeking relief pursuant to 42 U.S.C. § 1983. This matter is before the court on defendant's motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure. Defendant contends that plaintiff failed to exhaust administrative remedies prior to suit as to Dr. Dassah, and that plaintiff also failed to timely file a tort claim against Dr. Dassah.
In the May 22, 2009 amended complaint, plaintiff alleges that "at some point after " (id. at 3), Dr. Dassah violated the Eighth Amendment by neglecting to examine plaintiff, indicating he had no knowledge of any phrenic nerve damage, and advising plaintiff that due to his kidney transplant, plaintiff was unable to tolerate albuterol used with breathing treatments. (Id. at 3-4.)
"Section 1997e(a) of Title 42 of the United States Code provides: No 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.
This exhaustion requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001)." McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. Dec. 5, 2002). Exhaustion must precede the filing of the complaint; compliance with the statute is not achieved by satisfying the exhaustion requirement during the course of an action. Id. at 1200. Claims dismissed for failure to exhaust administrative remedies should be dismissed without prejudice. Id.
The Supreme Court has addressed the exhaustion requirement in Jones v. Bock, ___ U.S. ___, 127 S.Ct. 910 (2007), and held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint because lack of exhaustion is an affirmative defense which must be pleaded and proved by the defendants; (2) an individual named as a defendant does not necessarily need to be named in the grievance process for exhaustion to be considered adequate because the applicable procedural rules that a prisoner must follow are defined by the particular grievance process, not by the PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not all, claims are unexhausted. The Supreme Court also held in Woodford v. Ngo that, in order to exhaust administrative remedies, the prisoner must comply with all of the prison system's procedural rules "so that the agency addresses the issues on the merits." Id., 548 U.S. 81, 126 S.Ct. 2378, 2385-88 (2006). Thus, exhaustion requires compliance with "deadlines and other critical procedural rules." Id. at 2386. Partial compliance is not enough. See id.
California's Department of Corrections provides a four-step grievance process for prisoners who seek review of an administrative decision or perceived mistreatment. Within fifteen working days of "the event or decision being appealed," the inmate must ordinarily file an "informal" appeal, through which "the appellant and staff involved in the action or decision attempt to resolve the grievance informally." Cal.Code Regs., tit. 15, §§ 3084.5(a), 3084.6(c). [Footnote omitted.] If the issue is not resolved during the informal appeal, the grievant next proceeds to the first formal appeal level, usually conducted by the prison's Appeals Coordinator. Id. §§ 3084.5(b), 3084.6(c). Next are the second level, providing review by the institution's head or a regional parole administrator, and the third level, in which review is conducted by a designee of the Director of the Department of Corrections. [Footnote omitted.] Id. § 3084.5(e)(1)-(2).
Brown v. Valoff, 422 F.3d 926, 929-30 (9th Cir. 2005.) Department regulations require that
(1) Informal level responses shall be completed within ten working days.
(2) First level responses shall be completed within 30 working days.
(3) Second level responses shall be completed within 20 working days, or 30 working days if first level is waived pursuant to section 3084.5(a)(3).
(4) Third level responses shall be completed within 60 working days.
Cal.Code Regs., tit. 15, § 3084.6(b).
Plaintiff's claim against defendant Dr. Dassah is based on his assertion that defendant Dassah was deliberately indifferent to plaintiff's serious medical needs, beginning at some point after 2006.
Defendant has provided copies of plaintiff's grievances filed after the December 26, 2006 coronary artery bypass graft redo procedure performed by Dr. Klingman. (Grannis Decl., Exs. A-C.) In plaintiff's CDC-1824, log number 07M-478, plaintiff challenged the injury he sustained during the heart surgery on December 26, 2006. (Id., Ex. B.) Plaintiff complained that the "foul-up" during his surgery was deliberate indifference to his ...