FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under 42 U.S.C. § 1983. He alleges that defendants' refusal to increase his methadone dosage for pain in his ankle constitutes deliberate indifference to a serious medical need, in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Defendants have filed a motion to dismiss, arguing that plaintiff has failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a).
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. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 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). California Department of Corrections and Rehabilitation (CDCR) regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a prisoner has received a "Director's Level Decision," or third-level 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 v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied sub nom. Alameida v. Wyatt, 540 U. S. 810 (2003).
Under CDCR regulations an inmate must file his prisoner grievance within fifteen days of the events grieved. If plaintiff failed to exhaust available administrative remedies, by filing a late grievance, this case must be dismissed. Woodford v. Ngo, 548 U.S. 81 (2006). Furthermore, all steps of the grievance process must be completed before a civil rights action is filed, unless a plaintiff demonstrates a step is unavailable to him. Exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002).
California regulations do not require an inmate to specifically identify a prison official in a grievance. Therefore a California inmate need not name a particular individual during the grievance process in order to name that person as a defendant and meet the PLRA's exhaustion requirement by the time he files suit. See Jones v. Bock, 549 U.S. 199, 218-219 (2007); Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005).
Plaintiff filed his complaint on May 18, 2009. At all times relevant to this action, he was an inmate at California State Prison-Sacramento (CSP-Sacramento). On October 9, 2009, the court, exercising its duty to screen the complaint under 28 U.S.C. § 1915A(a), allowed service on two defendants, Vu Duc, M.D., and C. Bakewell. The gravamen of plaintiff's complaint against them is the same: he alleges both were deliberately indifferent to his serious medical need by refusing to increase his dosage of methadone for pain in his ankle before and after he had surgery on it on February 13, 2009. See Compl. at 3-7. However, the factual details as to each defendant are different and critical in determining if plaintiff has exhausted his Eighth Amendment claim against either of them.
A. Plaintiff's Allegations Against Dr. Duc
Plaintiff identifies defendant Duc as "a physician here at Folsom State Prison" with whom he "discussed my pain problems." Compl. at 6. Plaintiff is specific about when he met with Dr. Duc: February 25, 2009, and April 9, 2009. Id. Thus the only relevant administrative grievances that could have exhausted plaintiff's claim against Dr. Duc must have been filed after those dates.
Plaintiff and defendants have submitted copies of plaintiff's numerous grievances related to the pain in his ankle. Only one of them, which plaintiff initiated on April 6, 2009, involves any complaint about pain medication after either of plaintiff's meetings with Dr. Duc. See Defs.' Ex. 6 (Appeal SAC-10-09-10823). However, plaintiff did not complain about inadequate methadone dosages on his Form 602, the initial appeal form on which prisoners allege their grievances and request remedial action by prison officials. Instead, plaintiff initially complained that the pain in his ankle made it too difficult to walk, and he requested a wheelchair and follow-up surgery on his ankle. Id. at 5. That request for action was denied at the first level of review on June 1, 2009. Id. at 10. Plaintiff then added the issue of pain medication on June 5, 2009, when he filed for second-level review of his request for a wheelchair and follow-up surgery. Id. at 6. The allegation concerning pain medication was rejected at the second level because plaintiff had raised "a new issue which does not belong to this appeal." Id. at 3. Plaintiff repeated the allegation about pain medication, and asserted it specifically against Dr. Duc for the first time, when he requested his grievance be sent to the Director's Level for final review, on June 24, 2009. Id., Attach. B at 8.
The grievance plaintiff initiated on April 6, 2009, fails to exhaust his claim against Dr. Duc (and defendant Bakewell) because in that appeal he only raised the issue of pain medication on June 5, 2009, after he had filed his action in this court on May 18, 2009. That is too late to exhaust a claim under the PLRA, which requires complete exhaustion before an action is filed. See McKinney, supra. Moreover, prison appeals officials properly rejected plaintiff's appeal against Dr. Duc because he did not raise it at the initial level. His grievance against Dr. Duc was in that respect procedurally defective and thus did not satisfy the exhaustion requirement. Exhaustion "'means using all steps that the agency holds out, and doing so properly....'" Woodford, 548 U.S. at 90 (citation omitted). Because there is no evidence that plaintiff properly exhausted any grievance about inadequate pain medication after Dr. Duc allegedly refused to increase plaintiff's methadone dosage, the claim against Dr. Duc should be dismissed.
B. The Allegations Against C. Bakewell
Plaintiff does not provide any specific dates for his discussions with defendant Bakewell, a nurse practitioner, regarding his methadone dosage. However, he does say he saw Bakewell about pain medication "[w]hile I was housed in B4-cell 127." Compl. at 3. Defendants submit a declaration of T. Hinrichs, a correctional counselor at CSP-Sacramento with access to housing records, who states that plaintiff "inhabited cell 127 in building 4, B facility between October 30, 2008, and January 5, 2009." Decl. of T. Hinrichs ¶ 5. Plaintiff's own account of the 602s he filed concerning Bakewell's ...