The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING MOTION TO DISMISS FILED BY DEFENDANTS LOO, NEUBARTH, HUANG, ORTIZ, AND McVICAR BE DENIED (Doc. 142) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations - Defendant's Motion to Dismiss
Tyrone R. Jones ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 12, 2001. (Doc. 1.) This Court screened the Complaint pursuant to 28 U.S.C. § 1915A and issued an order on October 9, 2001, directing the United States Marshal to serve process on Defendants G. Lewis, Ducray, L.B. McVicar, W. Buehler, J.C. Smith, V.M. McKnight, W.R. Williams, L. Loo, J. Neubarth, R. Ortiz, H. Huang, C.J. Sanchez, C. Murtaugh, Davis, Cantu, Tress, and Stephens.*fn1 (Doc. 9.)
On November 29, 2001, Defendants filed a motion to dismiss the Complaint based on Plaintiff's failure to exhaust administrative remedies, and on March 6, 2002, Defendants filed an amended motion to dismiss. (Docs. 33, 48.) On March 10, 2003, this Court denied the motion, with leave to renew it in light of the Ninth Circuit's recent decision in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). (Docs. 81, 91.)
On March 31, 2003, Defendants renewed the motion to dismiss the complaint based on Plaintiff's failure to exhaust administrative remedies. (Doc. 97.) On March 11, 2004, the renewed motion was granted in part and denied in part, leaving the case to proceed only against Defendants Cantu and Davis on Plaintiff's excessive force claims, and dismissing all other claims and Defendants. (Docs. 107, 109.)
On March 25, 2004, Defendants Cantu and Davis filed their Answer to the Complaint. (Doc. 110.) On April 15, 2004, this Court issued a Discovery/Scheduling Order setting pretrial deadlines. (Doc. 111.) On May 11, 2004, Defendants Cantu and Davis filed a motion to dismiss the Complaint based on Plaintiff's failure to exhaust administrative remedies on the excessive force claim. (Doc. 114.) On January 19, 2005, the motion was granted, and the case was dismissed in its entirety without prejudice. (Docs. 121, 122.) Judgment was entered on January 19, 2005. (Doc. 123.)
On January 31, 2005, Plaintiff filed a notice of appeal to the Court of Appeals for the Ninth Circuit. (Doc. 124.) On May 26, 2009, the Ninth Circuit affirmed in part and vacated in part the district court's judgment, remanding the action. (Doc. 133.) The judgment was affirmed as to the dismissal of Plaintiff's Eighth Amendment claim against defendant Murtaugh regarding sleep deprivation, Plaintiff's excessive force claim against defendants Davis and Cantu, Plaintiff's deliberate indifference claim regarding access to prescription medication, and Plaintiff's retaliation claim concerning Plaintiff's placement in administrative segregation. The judgment was vacated as to the dismissal of Plaintiff's deliberate indifference claims regarding treatment of his bunions, hemorrhoids and skin condition, in light of the Ninth Circuit's decision in Griffin v Arpaio, 557 F.3d 1117 (9th Cir. 2009). The district court reopened the case on June 2, 2009. This case now proceeds only against Defendants Dr. Larry Loo, Dr. Neuberth, Dr. Huang, Dr. Ortiz, and McVicar, on Plaintiff's Eighth Amendment claims for inadequate medical care related to his bunions, hemorrhoids, and skin condition. (Doc. 137.)
On February 10, 2010, Defendants Dr. Larry Loo, Dr. Neuberth, Dr. Huang, Dr. Ortiz, and McVicar filed a motion to dismiss for failure to exhaust, pursuant to Fed. R. Civ. P. 12(b). (Doc. 142.) Plaintiff filed an opposition on February 22, 2010. (Doc. 145.) Defendants filed a reply on February 26, 2010. (Doc. 146.) The motion has been deemed submitted. Local Rule 230(l).
Defendants argues that Plaintiff failed to exhaust his claims in compliance with 42 U.S.C. § 1997e(a), subjecting the claims to dismissal.
Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides 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." Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (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 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).
The California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (West 2009). The process is initiated by submitting a CDCR 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 ...