The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING MOTION TO DISMISS, AND DISMISSING ACTION WITHOUT PREJUDICE (Doc. 22)
Order on Defendants' Motion to Dismiss
Plaintiff Quincy Lowman ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 9, 2007, and filed a first amended complaint on March 3, 2008. This action is proceeding against defendants Loadholt, McGuinness and Dwevedi ("Defendants"). Pending before the Court is Defendants' motion to dismiss, filed March 9, 2009. Plaintiff filed an opposition on July 27, 2009, and Defendants filed a reply on August 19, 2009.*fn1 The motion is deemed submitted.
II. Dismissal for Failure to Exhaust
A. Exhaustion Requirement
Pursuant to the Prison Litigation Reform Act of 1995, "[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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which Defendants have the burden of raising and proving the absence of exhaustion. Jones, 127 S.Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
The California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2008). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. at § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are required to use the available process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2383 (2006); McKinney, 311 F.3d at 1199-1201.
B. Summary of Plaintiff's Allegations
This action is proceeding against Defendants for violation of the Eighth Amendment of the United States Constitution. The events giving rise to this action occurred at California State Prison -Corcoran, where Plaintiff was transferred on January 10, 2007. In his amended complaint, Plaintiff alleges that on February 20, 2007, Plaintiff complained to defendant Loadholt that he was experiencing severe pain in his left testicle. (Doc. 11, Comp. ¶¶11, 12.) Plaintiff alleges that defendant Loadholt was aware that Plaintiff's pain medication had been depleted and that he was not receiving any treatment. (Id., ¶13.) Plaintiff alleges that defendant Loadholt confirmed a lump in Plaintiff's left testicle, knew of Plaintiff's complaints of severe pain, and refused to provide any treatment, instead referring Plaintiff to a urologist, and causing Plaintiff to suffer. (Id., ¶¶15-17.)
Plaintiff alleges that on March 13, 2007, he was seen by urologist Dr. Dwevedi. (Id., ¶18.) Plaintiff alleges that defendant Dwevedi failed to provide adequate treatment and caused Plaintiff to continue to suffer. (Id., ¶¶23-26.) Defendant Dwevedi recommended surgery and tissue testing. (Id., ¶22.) Plaintiff underwent a penal culture examination on April 11, 2007. (Id., ¶29, 32.) Plaintiff alleges that defendant Loadholt did not provide plaintiff with antibiotics for five to six days after the test results showed an infection. (Id., ¶38.) On May 10, 2007, Plaintiff underwent surgery by defendant Dwevedi to remove the cyst in his left testicle. (Id., ¶40.)
Plaintiff alleges that because of a policy implemented by defendant McGuinness, Plaintiff suffered unreasonable delay in receiving treatment. (Id., ¶44.) Plaintiff alleges that he suffered prolonged and ...