The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Through the present action, Plaintiff Kevin Jackson ("Plaintiff") seeks redress for alleged violations, while incarcerated within the State of California's prison system, of his Eighth Amendment rights under the United States Constitution. Defendants include the Medical Director and two physicians working at the California State Prison-Solano, where Plaintiff was incarcerated.
Presently before the Court is Defendants' Motion to Dismiss Plaintiff's complaint on grounds that he failed to exhaust his administrative remedies before bringing suit, as required by the Prison Reform Litigation Act ("PLRA"). For the reasons set forth below, Defendants' Motion will be denied.*fn1
Plaintiff's initial complaint, filed July 8, 2008, sought injunctive relief on a class-wide basis for California inmates infected with hepatitis C who were denied liver biopsies and combination drug therapy for Stage II liver disease. Plaintiff, who was diagnosed with a chronic hepatitis C infection in 2000, alleged that treatment delays violated class members' rights to adequate medical care under the Eighth Amendment to the United States Constitution. The only named Defendant initially named within the specifically denominated "class action case" was Robin Dezember, in her capacity as Director of Correctional Health Care Services for the California Department of Corrections and Rehabilitation.
Plaintiff ultimately abandoned his class action complaint after the Court issued an Order to Show Cause as to why the action should not be transferred to the Northern District of California for joinder with the ongoing class action litigation in Plata v. Schwarzenegger, No. 3-01-1351, which already challenged California's prison health care system.
Because Plaintiff's response specifically requested leave to file an amended complaint on his own behalf, however, the Court granted Plaintiff leave to amend for that purpose by its Minute Order filed September 30, 2008.
Plaintiff's Amended Complaint, filed on October 10, 2008 in accordance with the September 30 Order, sought damages only on his own behalf and was instituted, not against Ms. Dezember on a statewide basis, but rather only against doctors responsible for patient care at California State Prison-Solano, where Plaintiff was housed. Rather than seeking injunctive relief, Plaintiff seeks damages on his own behalf for alleged exacerbation of liver damage occasioned by Defendants' delays in providing treatment.
Defendants claim that Plaintiff failed to exhaust his administrative remedies because his internal grievance complaining of inadequate treatment was not concluded until August 13, 2008, at the earliest, when his appeal was partially granted, with hepatitis C treatment scheduled to begin after contemplated knee surgery. Because that date was after Plaintiff instituted his class action proceedings on July 8, 2008, Defendants allege that his administrative remedies were not exhausted prior to the institution of suit. The present Motion to Dismiss for failure to exhaust is predicated on that alleged shortcoming. Plaintiff, on the other hand, contends that because he was allowed to file what amounted to a new complaint on his own behalf against new defendants, the date that amended pleading was filed (October 10, 2008) should control.
According to Plaintiff, because his individual complaint was filed after the administrative grievance had concluded, no exhaustion issue is present.
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit "should be treated as a matter in abatement subject to an unenumerated Rule 12(b) motion."*fn2 Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). "[D]efendants have the burden of raising and proving the absence of exhaustion." Id. at 1119.
"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1120. If the district court concludes that the prisoner has failed to exhaust his non-judicial ...