The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. This case is proceeding on the third amended complaint, filed August 21, 2008. Plaintiff alleges that defendants Kromann, Traquina, Rallos, Noriega, and Basi were deliberately indifferent to plaintiff's serious medical needs, and that defendant Tran was deliberately indifferent to plaintiff's serious medical needs and retaliated against plaintiff. Pending before the court is the motion for summary judgment filed by defendant Basi; and the motion to dismiss filed by defendants Kromann, Noriega, Rallos, Traquina and Tran. Plaintiff filed an opposition to defendant Basi's motion for summary judgment on August 19, 2010. Plaintiff has not filed an opposition to defendants' motion to dismiss plaintiff's claims as unexhausted. Counsel for all defendants have filed a reply. As explained more fully below, the court recommends that the motion to dismiss by defendants Kromann, Noriega, Rallos, Traquina and Tran be denied, and defendant Basi's motion for summary judgment be granted.
II. Motion to Dismiss Defendants Kromann, Noriega, Rallos, Traquina and Tran Defendants Kromann, Noriega, Rallos, Traquina and Tran aver that plaintiff failed to exhaust his administrative remedies prior to the filing of the instant action. Plaintiff failed to oppose this motion. Because this court recommends denial of the motion, plaintiff was not granted additional time to oppose the motion to dismiss.
A. Legal Standard re Exhaustion
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide 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." 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734. The fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records).
A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Brown, 422 F.3d at 936-37.
As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84.
The State of California provides its prisoners the right to appeal administratively "any departmental decision, action, condition or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a) (2010). It also provides prisoners the right to file appeals alleging misconduct by correctional officers and officials. Id. at § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.
Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court may look beyond the pleadings to determine whether a plaintiff exhausted his administrative remedies. Id. at 1119-20.
Pursuant to the mailbox rule, plaintiff constructively filed the
original complaint in this action on October 31, 2006.*fn1
The complaint was file-stamped by the Clerk of Court on
November 29, 2006. However, this action is proceeding on the third
amended complaint ("TAC"),*fn2 constructively filed
August 13, 2008, and file-stamped on August 21, 2008. (Dkt.No.42.)
On September 8, 2010, after the filing of the instant motion, the Ninth Circuit held that the PLRA's exhaustion requirement is satisfied for new claims asserted in an amended complaint as long as the plaintiff exhausted his administrative remedies with respect to the new claims before he tendered the amended complaint to the court for filing. Rhodes v. Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010). The Ninth Circuit acknowledged two cases: McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) (exhaustion is a prerequisite to suit); and Vaden v. Summerhill, 449 F.3d 1047 (9th Cir. 2006) (a case is "brought" within the meaning of § 1997e at the time it is tendered to the district court). However, the court held that both McKinney and Vaden must be "read and applied in the larger context of the pleading framework established by the Federal Rules of Civil Procedure." Rhodes, 621 F.3d at 1005. Under the Federal Rules, as a general rule, when a plaintiff files an amended complaint, "[t]he amended complaint supercedes the original, the latter being treated thereafter as non-existent," and thus its filing date is irrelevant. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1976).
In the instant action, the motion to dismiss based on plaintiff's failure to exhaust his administrative remedies prior to filing the instant action, and defendants' subsequent reply, were both filed prior to the ruling in Rhodes. Defendants Kromann, Noriega, Rallos, Traquina and Tran provided records concerning inmate appeals for the time period June 22, 2004, through November 29, 2006. (Dkt. No. 72-3 at 2; 72-4 at 1.) Plaintiff confirmed in his deposition that the TAC is limited to events that occurred, and medical treatment received, after he had left knee surgery*fn3 on August 17, 2007. (Dkt. No. 73 at 34, 35-36, 38-39.) However, defendants have not submitted any evidence concerning inmate appeals for the period November 30, 2006, through August 13, 2008.
Therefore, without evidence to determine whether plaintiff's claims against defendants Kromann, Noriega, Rallos, Traquina and Tran have, in fact, been exhausted or not, defendants' motion to dismiss plaintiff's claims against these defendants must be denied based on the Ninth Circuit's holding in Rhodes. The court turns now to defendant Basi's motion for summary judgment.
III. Motion for Summary Judgment
Defendant Basi moves for summary judgment on the grounds that plaintiff has failed to adduce evidence demonstrating that defendant Basi was deliberately indifferent to plaintiff's serious medical needs or that there remains a triable issue of material fact.
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. " Fed. R. Civ. P. 56(a).*fn4
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c)). "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
Consequently, if the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted).
By order filed May 5, 2009, the court advised plaintiff of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 48); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
The following undisputed facts ("UDF") are either not disputed by plaintiff or defendant Basi, or, following the court's review of the evidence ...