ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff proceeds on his June 16, 2005 amended complaint in which he alleges that defendants Penner, Turella, and Howard were deliberately indifferent to his serious medical needs. On December 3, 2008, each defendant filed a separate motion for summary judgment. Defendants argue they are entitled to judgment because plaintiff cannot meet his evidentiary burden to show that they were deliberately indifferent to plaintiff's serious medical needs. Defendants Penner and Howard also argue they are entitled to judgment on the ground that plaintiff did not exhaust available administrative remedies. On March 17, 2009, plaintiff filed separate oppositions to defendants' respective motions. None of the defendants filed replies. For the reasons explained below, the court finds that summary judgment should be granted in favor of each defendant.
The following facts are undisputed, except as noted below. Plaintiff is an inmate incarcerated within the California Department of Corrections and Rehabilitation (CDCR). Am. Compl. ("Compl.") at 1. Defendants Penner, Turella, and Howard were employed by CDCR as medical doctors. Def. Penner Mot. for Summ. J., Penner Decl. in Supp. Thereof ("Penner Decl.") ¶ 2; Def. Turella Mot. for Summ. J., Turella Decl. in Supp. Thereof ("Turella Decl.") ¶ 2; Def. Howard Mot. for Summ. J., Howard Decl. in Supp. Thereof ("Howard Decl.") ¶ 2. Plaintiff has lower back pain from a degenerative condition in his lower spine. Def. Penner Mot. for Summ. J., Stmt. of Undisp. Facts in Supp. Thereof ("Penner SUF") 2; Def. Turella Mot. for Summ. J., Stmt. of Undisp. Facts in Supp. Thereof ("Turella SUF") 2; Def. Howard Mot. for Summ. J., Stmt. of Undisp. Facts in Supp. Thereof ("Howard SUF") 2.
On October 9, 1998, plaintiff saw a physician for severe back pain. Penner SUF 5; Turella SUF 5; Howard SUF 5. X-rays taken at that time showed that plaintiff's "lumbar spine was within normal limits." Id. Plaintiff took prescription Ibuprofen for his back pain for approximately two years. Penner SUF 6; Turella SUF 6; Howard SUF 6. As of January 4, 2000, plaintiff continued to have back pain. Penner SUF 7; Turella SUF 7; Howard SUF 7.
On April 6, 2001, plaintiff received medical care from defendant Penner following an incident in which plaintiff's back and left leg "gave out." Penner SUF 8; Turella SUF 8; Howard SUF 8. Defendant Penner ordered x-rays for plaintiff's back but denied plaintiff's request for an MRI. Penner SUF 9; Turella SUF 9; Howard SUF 9. Defendant Penner also prescribed various muscle relaxers and a Toridol shot for plaintiff's condition. Penner SUF 11; Turella SUF 11; Howard SUF 11. The x-rays of plaintiff's back showed that plaintiff had the following condition: mild degenerative changes of the lumbar spine, especially at the L4-5 level. The intervertebral disc space narrowing at this level appears to have progressed slightly since October, 1998.
Penner SUF 10; Turella SUF 10; Howard SUF 10. These x-rays showed only slight degeneration compared to the previous x-rays taken in October, 1998. Penner Decl. ¶ 6.
In 2002, nearly a year after the first visit, plaintiff saw defendant Penner a second time for treatment of muscle spasms in his back and leg.*fn1 Penner SUF 12; Turella SUF 12; Howard SUF 12; Compl. at 3:21-23, 10:11-12. Defendant Penner prescribed muscle relaxer medications and again refused plaintiff's request for an MRI. Penner SUF 13; Turella SUF 13; Howard SUF 13. According to defendant, plaintiff showed no symptoms or circumstances at either visit that would lead him to order an MRI instead of x-rays. Penner Decl. ¶ 6.
In April 2003, plaintiff saw a physician following an incident where plaintiff was transported by stretcher to receive emergency medical care. Penner SUF 14; Turella SUF 14; Howard SUF 14; Compl. at 3:25-4:4. According to plaintiff, the physician gave him a Toridol shot and muscle relaxers, and also ordered an MRI of plaintiff's back. Compl. at 4:4-6. The MRI, dated June 23, 2003, showed slight nerve impingement. Penner Decl. ¶ 6.
On October 1, 2003, defendant Turella examined plaintiff for his back condition.*fn2
Turella Decl. ¶ 4. Based on his examination of plaintiff, defendant Turella rescinded an order dated September 17, 2003, for an elastic support back brace. Id. Defendant Turella determined that the back brace for plaintiff was not medically necessary because it would restrict plaintiff's lumbar spinal movement and could actually cause more harm to plaintiff's back condition. Id.
Plaintiff alleges that on some unidentified date, defendant Turella also rescinded a medical chrono*fn3 request for soft shoes and that he, along with other prison physicians, denied plaintiff's October 21, 2004 request for an outside physical therapist. Compl. at 6:5-11, 8:15-17. Defendant Turella, however, has no recollection of either event. Turella Decl. ¶¶ 5, 6.
From May 28, 2004 to January 17, 2005, defendant Howard was employed as a medical doctor by CDCR and his primary duties were to oversee the general operations of the medical department, which included reviewing inmate appeals. Howard Decl. ¶ 2. Defendant Howard performed a purely administrative function when reviewing inmate appeals to determine whether all of the issues in the inmate appeals were addressed; he did not second guess the treating physicians. Id. Defendant Howard never personally provided plaintiff with medical care, as he never provided direct patient care to inmates. Id. ¶¶ 4, 6. Plaintiff's deliberate indifference claim against defendant Howard is premised on his allegation that defendant was made aware of plaintiff's medical problems through the administrative grievance procedure, but failed to remedy them. Compl. at 10:25-11-4.
According to plaintiff, he had back surgery on April 5, 2004. Id. at 5:1-3. Because of complications after plaintiff's first surgery (a misaligned screw), plaintiff allegedly had a second surgery on September 7, 2004. Id. at 7:1-7. Plaintiff alleges that each defendant intentionally delayed plaintiff's medical treatment, which caused him to suffer for months and resulted in permanent injuries. Id. at 13:4-10. Plaintiff claims to have suffered permanent nerve damage because of the length of time it took to get each of his surgeries. Id. at 5:1-27. With respect to this last claim, plaintiff alleges that "the delay in getting treatment was a direct product of certain constitutionally deficient policies or practices" that were "tolerated or ignored by the [CDCR] or independently [by] the medical department." Id. at 13:11-15.
II. Exhaustion of Administrative Remedies
Defendants Penner and Howard argue they are entitled to judgment because plaintiff has not exhausted his administrative remedies concerning his claims against them. Def. Penner Mot. for Summ. J., Mem. of P. & A. in Supp. Thereof ("Penner P. & A.") at 13-16; Def. Howard Mot. for Summ. J., Mem. of P. & A. in Supp. Thereof ("Howard P. & A.") at 14-16. As discussed below, exhaustion is an affirmative defense on which defendants bear the burden of proof and they have not met their burden of proving the absence of exhaustion.
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[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). The failure to exhaust non-judicial administrative remedies as required by § 1997e(a) is not jurisdictional. Wyatt v. Terhune, 315 F.3d 1108, 1117 n.9 (9th Cir. 2003). Moreover, the Supreme Court has held that "failure to exhaust is an affirmative defense under the PLRA, and  inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 127 S.Ct. 910, 921 (2007). The burden of raising and proving the absence of exhaustion is on the defendant. See Wyatt, 315 F.3d at 1119.
Here, defendants Penner and Howard argue that plaintiff has failed to exhaust his administrative remedies, but offer no evidence to prove the absence of exhaustion. Rather, they point only to the decisions regarding administrative appeals that are attached to plaintiff's complaint and argue that those exhibits do not prove exhaustion. See Def. Penner P. & A. at 13-16; Def. Howard P. & A. at 14-16. As explained above, however, § 1997e(a) does not require a plaintiff to plead exhaustion, and plaintiff has not conceded nonexhaustion. See Wyatt, 315 F.3d at 1119, 1120; see also Compl. at 14. Assuming the attached exhibits do not prove exhaustion, as defendants contend, this does not foreclose the possibility that plaintiff otherwise exhausted his administrative remedies, or that plaintiff's administrative remedies were made unavailable to him. See Pl.'s Opp'n to Def. Penner Mot. for Summ. J., Mem. of P. & A. in Supp. Thereof ("Pl.'s Opp'n to Penner, P. & A.") at 25 (referring to administrative appeals that were ignored or never returned). Defendants submit no evidence regarding these issues, and therefore, have not carried their burden of proving nonexhaustion. See Gray v. Woodford, No. 05-cv-1475 J, 2007 U.S. Dist. LEXIS 70839, at *46-47 (S.D. Cal. Sept. 25, 2007) (denying defendants' motion to dismiss for failure to exhaust where defendants presented no evidence of nonexhaustion); ...