The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) defendants' motion to dismiss, filed on January 19, 2010, brought by defendants Registered Nurse (RN) Dator; RN Stormes; Licensed Vocational Nurse (LVN) R. Cook; Dr. J. Soltanian-Zadeh; Dr. B. Williams to which plaintiff filed his opposition on February 10, 2010, after which defendants' filed a reply on Feb. 16, 2010; defendant Wohlers*fn1 filed a notice of joinder in the motion on March 1, 2010; 2) plaintiff's motion to lodge documents, filed on March 9, 2010; and 3) plaintiff's motion for judicial notice, filed on March 10, 2010. To the extent that this pro se plaintiff is asking for these filings to be considered as part of his opposition to defendants' motion to dismiss, although belated with respect to each defendant except defendant Wohlers, who joined the motion to dismiss after the motion to dismiss had been briefed, these motions are granted.
Plaintiff's complaint, originally filed on January 12, 2009, proceeds on his verified second amended complaint, filed on April 30, 2009, against six defendants employed at Mule Creek State Prison (MCSP): Registered Nurse (RN) Dator; RN Stormes; RN S. Wohlers; Licensed Vocational Nurse (LVN) R. Cook; Dr. J. Soltanian-Zadeh; Dr. B. Williams. Second Amended Complaint (SAC), pp. 1-21. Plaintiff alleges that he is a state prisoner with a disability as defined in the Americans With Disabilities Act of 1990 (42 U.S.C. § 12102), with the specific impairment of a left ankle with fusion with screws, requiring plaintiff's use of a single point cane to walk. SAC, pp. 1-2.
From June 21, 2007, until August 22, 2007, plaintiff saw (non-defendant) Dr. Hashimoto several times for pain plaintiff had associated with a kidney stone and to renew his pain medication, Vicodin, and other medical issues. SAC, p. 6. On August 23, 2007, plaintiff, in severe pain due to his kidney stone, received only half the pain medication he was prescribed, even though a day earlier Dr. Hashimoto had renewed the dosage for thirty more days. Id., at 6-7. Despite plaintiff's pain, defendant Dator refused to provide any medical care for plaintiff or to review his chart to see plaintiff's medical condition. Id., at 7. About three hours after plaintiff saw defendant Dator, he (Dator) called defendant Stormes at the central triage treatment area (TTA) about plaintiff's medical concerns but Stormes told Dator not to send plaintiff there as there was no doctor there and there was nothing wrong with plaintiff. Id. Plaintiff told defendant Dator that neither he nor Stormes had done any medical assessment to evaluate plaintiff's medical condition; both defendants denied plaintiff access to a medical doctor and subjected plaintiff to deliberate indifference. Id., 7-8.
On August 24, 2007, an R.N. named Genevice, not a party, pulled plaintiff's chart/unit health record and resolved the medication problem, telling plaintiff that had defendants Dator and Stormes pulled and reviewed plaintiff's chart, they would have seen that Dr. Hashimoto's notes had been erroneously transposed by the pharmacy and plaintiff's pain medication dosage was unchanged. SAC, p. 8. Plaintiff began taking his regular pain medication dosage, and was advised to report the actions of Stormes and Dator to their supervisors or to engage in the appeal process. Id. When plaintiff, on Aug. 24, 2007, tried to give defendant Dator an inmate appeal complaint concerning Dator's lack of medical care for the informal level of review, defendant Dator refused to take it. Id. That same day, plaintiff sent a copy of the inmate appeal Dator had refused with a formal complaint letter (citizen's complaint) about defendants Dator's and Stormes' lack of medical treatment to Warden Subia (not a defendant). Id., at 9. Plaintiff alleges that he received no notification until November 30, 2007, regarding the complaint and no action was taken. SAC, p. 9. Plaintiff claims the appeal was "'lost under the guise of [being] delayed." Id.
On November 21, 2007, plaintiff underwent a cystourethroscopy at Doctors Medical Center [Hospital] in Manteca, in which a double "J" stent was placed in plaintiff's penis, running up through the urethra to the left kidney in a procedure to remove a very large kidney stone. SAC, p. 9. Defendant Soltanian-Zadeh served as plaintiff's primary care physician at the prison for this procedure. Plaintiff alleges at one point that Soltanian-Zadeh became his primary care physician on or about June 20, 2007, when Dr. Hashimoto referred plaintiff to an orthopedic doctor for an ankle problem; in another place, he contends he became his primary care physician from about November 30, 2007 through March 12, 2008. Id. at 6, 10-11. When on January 17, 2008, plaintiff complained to defendants Wohlers and Cook about severe pain and passing a large amount of blood in his urine, defendants Wohlers and Cook refused to see plaintiff in the MCSP Facility C clinic or to allow him access to the TTA to see a doctor there. Id. at 9.
Plaintiff alleges that although defendant Wohlers saw blood in his urine sample, she refused plaintiff access to a doctor because she was about to get off her shift, thus subjecting plaintiff to deliberate indifference to his severe pain and passing blood. SAC, p. 10. Earlier, on Jan. 14, 2008, defendant Wohlers refused to check plaintiff's vital signs and defendant Cook did not allow plaintiff to see a doctor upon being told not to do so by defendant Wohlers, even though plaintiff told Cook he was in severe pain and defendant Cook saw plaintiff was passing large amounts of blood due to a failed cystourethroscopy. Id. When, previously on Jan. 3, 2008, defendant Soltanian-Zadeh interviewed/examined plaintiff regarding the failed cystourethroscopy, this defendant refused to refer plaintiff back out to Manteca for removal of the double J stent that was causing bleeding and other medical problems. Id.
Plaintiff's ankle surgery had been scheduled for Nov. 26, 2007, but he had asked that it be rescheduled due to his excessive bleeding from the stent procedure on Nov. 21, 2007. SAC, p. 10. At the Jan. 3, 2008 interview, defendant Soltanian-Zadeh granted plaintiff's ADA reasonable modification/accommodation request, appeal log # MCSP-C-03133, in full regarding the failure to have his required ankle surgery after Nov. 26, 2007. Id., at 11. Plaintiff told this defendant that a new RFS*fn2 should be resubmitted so that the surgery could be re-scheduled, but Soltanian-Zadeh refused to do so. Id. Plaintiff was prescribed Nurtain for his neuropathic pain. Id. Defendant Soltanian-Zadeh told plaintiff not to worry about the excessive bleeding and erectile dysfunction plaintiff was experiencing due to the stent. Id. Plaintiff contends that this defendant was deliberately indifferent in plaintiff's medical care and treatment from about Nov. 30, 2007, through March 12, 2008. Id.
In a March 12, 2008, office medical visit with Soltanian-Zadeh, plaintiff complained of serious pain and requested treatment for the failed cystourethroscopy/double J stent procedure, the remaining kidney stones, excessive bleeding, erectile dysfunction and ankle pain. SAC, p. 11. This defendant told plaintiff that he had no pain or residual kidney stones regardless of what the Feb. 8, 2008, radiology report indicated and that because plaintiff was doing life, he did not need the use of his penis. Id. The erectile dysfunction was caused by the stent that remained in for about four months. Id. Plaintiff was told to "deal with it." Id. at 11-12. Plaintiff told Soltanian-Zadeh that his actions (or lack thereof) had caused him irreparable injury. Id. at 12. Plaintiff alleges that he had filed "paper work" about defendant SoltanianZadeh's lack of treatment and that defendant's refusal to provide medical treatment even after his second request for treatment was an act of "reprisal" for plaintiff's complaint filing. Id.
When, on about March 20, 2008, plaintiff received a CDCR custodial counseling chrono 128-A issued by defendant Soltanian-Zadeh concerning the March 12, 2008 office visit, plaintiff filed an administrative appeal and the chrono was overturned. SAC, p. 12. On May 5, 2008, plaintiff filed a formal complaint against defendant Soltanian-Zadeh with the Medical Board of California; on May 7, 2008, defendant Soltanian-Zadeh re-issued the previously over-turned CDC 128-A custodial counseling chrono, plaintiff again appealed and the second chrono was also overturned. Id.
When plaintiff received medical care from Physician Assistant Karen Todd (not a party), she resolved in about a month plaintiff's remaining kidney stones issue and had the stent removed that defendant Soltanian-Zadeh had not corrected for four months; however, due to complications from the prolonged time the stent remained, which was not medically required, plaintiff's erectile dysfunction became permanent. SAC, p. 13. P. A. Todd also took care of rescheduling plaintiff's ankle surgery by submitting an RFS which defendant Soltanian-Zadeh had refused to do. P.A. Todd's medical treatment he required for his kidney stone and ankle problems. Id. Although plaintiff had contacted defendant Williams (and non-party Associate Warden Jackson), on or about February 3, 2008, about the lack of medical care he was receiving from defendant Soltanian-Zadeh, defendant Williams personally failed to act although the issue was before him on several occasions. Id. Plaintiff also contacted defendant Williams on June 29, 2008, about the lack of medical care for his left ankle but he failed to act although this issue was before him on several occasions as well. Id. at 15.
Plaintiff alleges violations of the Eighth and Fourteenth Amendments by all defendants, seeking compensatory and punitive money damages. SAC, pp. 15-20.
Defendants Williams; Dator; Stormes; Soltanian-Zadeh; and Cook bring their motion to dismiss, pursuant to non-enumerated Fed. R. Civ. P. 12(b), for plaintiff's alleged failure to exhaust administrative remedies and, under Fed. R. Civ. 12(b)(6) for failure to state a claim. Motion to Dismiss (MTD), pp. 2-13. Defendant Wohlers later joined the motion. See Notice of Joinder, pp. 1-3.
Legal Standard under Non-Enumerated Fed.R.Civ.P. 12(b)
In a motion to dismiss for failure to exhaust administrative remedies under non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure, defendants "have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The parties may go outside the pleadings, submitting affidavits or declarations under penalty of perjury, but plaintiff must be provided with notice of his opportunity to develop a record. Wyatt v. Terhune, 315 F.3d at 1120 n.14. The court provided plaintiff with such fair notice by Order, filed on August 31, 2009 (docket # 15).
Should defendants submit declarations and/or other documentation demonstrating an absence of exhaustion, making a prima facie showing, plaintiff must refute that showing. Plaintiff may rely upon statements made under the penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court's attention those parts of the complaint upon which plaintiff relies. If the court determines that plaintiff has failed to exhaust, ...