The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING DEFENDANTS' MOTION TO DISMISS and STRIKING MONETARY RELIEF AGAINST DEFENDANTS IN THEIR OFFICIAL CAPACITIES
On July 11, 2008, Charles Johnson ("Plaintiff"), a California prisoner proceeding pro se and in forma pauperis, filed an action against Defendants pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915(a). (Doc. No. 1.) On January 2, 2009, Defendants*fn1 moved to dismiss the complaint, alleging that Plaintiff failed to exhaust state administrative remedies prior to filing in federal court and that Defendants are immune from liability under the Eleventh Amendment to the Federal Constitution. (Doc. No. 15.) On December 1, 2008, Plaintiff filed an Opposition to Defendants' Motion to Dismiss. (Doc. No. 20.)
The Magistrate Judge issued a Report and Recommendation on April 13, 2009 recommending that this Court grant in part and deny in part Defendants' Motion to Dismiss. (Doc. No. 22.) Plaintiff filed his Objection to the Report and Recommendation on May 4, 2009. (Doc. No. 23.) Plaintiff included supplemental documents in his Objection to address the recommended dismissal of one of his claims.
For the reasons below, the Court ADOPTS in part the Magistrate Judge's Report and Recommendation, DENIES Defendants' Motion to Dismiss, and STRIKES all monetary damages against Defendants in their official capacities.
A. Civil Rights Allegations
Plaintiff alleges that he is hemiplegic with paralysis in his right should, arm, and hand. (Doc. No. 1 at 3.) As a result of his medical condition, a medical order was issued on December 5, 2007 that required the use of waist chains rather than handcuffs to transport Plaintiff to and from therapy appointments. (Doc. No. 1 at 4.) On several occasions between late November 2007 and early January 2008, Defendants Figueroa and Davis refused to use waist chains and demanded that Plaintiff submit to handcuffs before being transported to therapy, even though Plaintiff informed Defendants of the medical order requiring waist chains. (Doc. No. 1 at 3.) Plaintiff submitted to handcuffs to get to his therapy appointments, but they had to be removed due to pain. (Doc. No. 1 at 3.) Plaintiff alleges that he sought assistance from DefendantPreciado, a correctional sergeant, but Defendant Preciado sided with Defendants Figueroa and Davis.
Plaintiff filed an administrative appeal seeking accommodation under the Americans with Disabilities Act (ADA) by requiring prison staff to use waist chains instead of handcuffs. (Doc. No. 1 at 4.) The appeal was granted in full at the first level of review on December 20, 2007. (Doc. No. 1 at 4.) Plaintiff alleges that prison officials retaliated against him after the appeal was granted by refusing him medical care and by transferring him to Kern Valley State Prison. (Doc. No. 1 at 4.)Moreover, Plaintiff alleges that Defendants Bell, Stratton, Delgado, Grannis, and Scribner failed to accommodate his ADA appeal by refusing him medical care.
Plaintiff seeks $75,000 in damages and an injunction preventing Defendants from denying him medical treatment, including transportation to and from physical therapy, and preventing Defendants from harassing, punishing, or retaliating against him. (Doc. No. 1 at 7.)
A. Claim 1 and Exhaustion of State Remedies
Plaintiff's first claim against Defendants is failure to provide medical care. Defendants move for dismissal because state administrative remedies are supposedly not exhausted. The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), states 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." Inmate suits about prison life, including specific instances of alleged abuse, fall under PRLA and are subject to the exhaustion requirement. Porter v. Nussle, 534 U.S. 516, 532 (2002). PRLA's exhaustion requirement is mandatory so as to provide state correctional facilities the opportunity to internally address any complaints before judicial involvement. Porter, 534 U.S. at 524. Failure to exhaust available administrative remedies prior to filing suit is properly remedied through dismissal without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Because the exhaustion requirement constitutes an affirmative defense, a defendant bears the burden of raising the defense and proving the absence of exhaustion. Wyatt, 315 F.3d at 1119.
When pursuing state administrative remedies, prisoners are only required under PRLA to exhaust those remedies that are readily available. Booth v. Churner, 532 U.S. 731, 736 (2001). If a remedy is no longer available, a prisoner does not need to pursue that administrative course any longer. Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005). The Ninth Circuit in Valoff noted that a prisoner "need not press on to exhaust further levels of review once he has either received all 'available' remedies ...