ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983. He alleges that defendants denied or delayed giving him adequate medical treatment in violation of his right to be free from cruel and unusual punishment under the Eighth Amendment. Defendants James, Roche and Cox have filed a motion to dismiss alleging that plaintiff failed to exhaust administrative remedies prior to filing this lawsuit.*fn1 Plaintiff has opposed the motion, and defendants have filed a reply.
I. Plaintiff's Allegations And Defendants' Grounds For Dismissal
Plaintiff alleges that defendants were deliberately indifferent to and denied him adequate medical treatment for prostate cancer. See Second Am. Compl. (Docket No. 25) at 4-5.*fn2 He alleges that defendants failed to refer him to a urologist "until it was too late" and his "condition steadily worsened to the point of no treatment but removal only." Id. at 3-4. Although his complaint does not explicitly state that his prostate gland was removed, plaintiff made that allegation clear in his opposition to defendants' motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), which the court denied as to all defendants except Warden Runnels. See Docket Nos. 54 and 57. Plaintiff seeks compensatory and punitive damages.
Defendants James, Roche and Cox again move to dismiss, arguing that the claims in the second amended complaint regarding pre-prostatectomy treatment have not been exhausted. See Defs.' Mot. at 5-7 (Docket No. 56). Defendants concede that plaintiff has exhausted appeals complaining only about plaintiff's post-prostatectomy treatment, but that treatment is not covered by plaintiff's claims against James, Roche and Cox. Id.
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), cert. denied sub nom. Alameida v. Wyatt, 540 U. S. 810 (2003). In deciding a motion to dismiss for 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 not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Id.
The exhaustion requirement is rooted in the Prison Litigation Reform Act (PLRA), which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The California Department of Corrections and Rehabilitation's (CDCR) regulations provide administrative procedures at one informal and three formal levels of review to address an inmate's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Generally, a prisoner exhausts his administrative remedies when he receives a "Director's Level Decision," or third formal level of review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119.
Defendants submit two declarations stating that plaintiff did not exhaust appeals regarding any pre-prostatectomy treatment involving these defendants. See Decl. of T. Robertson (Docket Nos. 56-3 and 56-4); Decl. of N. Grannis (Docket Nos. 56-1 and 56-2). Robertson, the Appeals Coordinator at HDSP, states that plaintiff filed three appeals concerning medical issues containing allegations against defendants while he was housed at High Desert State Prison (HDSP). In the first appeal, plaintiff complained of his state issued boots and medication for pain. See Robertson Decl. ¶ 6 (discussing Log No. HDSP-02-01055), Exs. 1, 2, 3. In the second, plaintiff complained of the denial of medication and unsanitary conditions at the prison medical facility following his prostatectomy. Id. ¶ 7 (discussing Log No. HDSP-05-02947), Exs. 4, 5, 6. In the third, plaintiff alleged he was still suffering from post-surgery complications when he was shot with a "block gun" and received no medical attention afterwards, further complicating his condition. Id. ¶ 8 (discussing Log No. HDSP-06-00713), Exs. 7, 8, 9.*fn3 Robertson states that plaintiff "has not filed any other administrative appeals, at the first level of review or beyond, regarding Defendants James, Roche, Cox and Scovel" concerning defendants' treatment before the prostatectomy.*fn4 Id. ¶ 9. Defendants also present the affidavit of N. Grannis, Chief of the Inmate Appeals Branch of CDCR. Grannis states that plaintiff submitted no third-level appeals concerning defendants' pre-surgery denial of referral to a specialist. See Grannis Decl. (Docket No. 56-1) ¶ 8.
In his opposition, plaintiff does not contend that his request for medically required footwear, Log No. HDSP-02-01055, exhausted the claims in the second amended complaint. Plaintiff also does not argue that the appeal concerning injuries from the "block gun" incident, Log No. HDSP-06-00713, satisfies the exhaustion requirement for this case.
Plaintiff contends the second appeal discussed in Robertson's and Grannis's declarations, Appeal Log No. 05-02947, concerns "past and present" medical issues broadly enough to exhaust the claims against James, Roche and Cox for their medical treatment before the prostatectomy. See Opp'n (Docket No. 58) at 6-8. The 602 form initiating that appeal states plaintiff's position, in pertinent part, that it was "bad enough that 4-years went by without the medical attention I needed," and "this recent surgery is a perfect example of the neglect by the medical department." See Mot. to Dismiss, Ex. 4 (Docket No. 56-4) at 14-15. However, these are only general, passing references to plaintiff's earlier treatment in a lengthy complaint about his post-prostatectomy medical care. Plaintiff identifies his recovery from surgery as "the problem" on the 602 form and asks for "the proper medicines to help in my recovery." Id. at 10. Plaintiff exhausted this appeal, and apparently it led to some responsive measures by prison staff regarding his recovery. It does not, however, alert prison staff to a specific problem regarding -> treatment before the prostatectomy. Log No. HDSP-05-2947 cannot stand as proof that plaintiff exhausted any claims about pre-surgery treatment.
Plaintiff also claims in his opposition that he filed additional appeals that were lost or destroyed. See Opp'n at 5-7. Failure to exhaust the administrative appeals process may be excused if prison staff renders the process effectively unavailable. See Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010). Plaintiff presents a fourth 602 form as evidence that he says "in essence nullifies" the declarations submitted by defendants because it involves pre-prostatectomy medical care and is not discussed in Robertson's or Grannis's declarations. See Opp'n at 7. Plaintiff apparently documents the history of that appeal, recorded as Log No. HDSP-03-0030, only to support his contention that defendants interfered with the appeals process. See Opp'n (Docket No. 58), Ex. A. He concedes the appeal was not exhausted. See Opp'n at 7.
This fourth appeal does notify prison staff of complaints about plaintiff's preprostatectomy care. However, there is no evidence that prison officials interfered with this appeal or any other. The attachments to plaintiff's opposition show that his third-level filing of this appeal was returned because it was untimely. See Opp'n at 34, Ex. I (N. ...