The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT SWEETLAND'S MOTION TO DISMISS BE GRANTED IN PART AND DENIED IN PART, AND RECOMMENDING THAT THE AMENDED COMPLAINT BE DISMISSED WITH LEAVE TO AMEND (Doc. 84.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Robert Maeshack ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action at the United States District Court for the Eastern District of California, Sacramento Division, on December 22, 2005. (Doc. 1.) On January 5, 2006, the case was transferred to the Fresno Division of the Eastern District of California. (Doc. 5.) This action now proceeds on Plaintiff's Amended Complaint filed on March 16, 2007, against defendant Dr. Sweetland, on Plaintiff's claims for inadequate medical care under the Eighth Amendment, and for medical malpractice under state law.*fn1 (Doc. 17.)
On January 6, 2011, defendant Sweetland ("Defendant") filed a motion to dismiss for failure to exhaust administrative remedies, failure to comply with California's Tort Claims Act, and failure to state a claim. (Doc. 84.) On July 19, 2011, Plaintiff filed an opposition.*fn2 (Doc. 89.) On July 25, 2011, Defendant filed a reply. (Doc. 90.) Defendant's motion to dismiss is now before the Court.
II. PLAINTIFF'S ALLEGATIONS AND CLAIMS*fn3
Plaintiff was a state prisoner at Avenal State Prison ("ASP") in Avenal, California, and Sierra Conservation Center ("SCC") in Jamestown, California, during the time of the events at issue, and Dr. Sweetland was a physician employed at SCC while Plaintiff was incarcerated there. Plaintiff alleges as follows in the Amended Complaint.
On April 23, 2004, while incarcerated at ASP, Plaintiff was bitten by a mouse or rat, which resulted in injury to Plaintiff's left leg and a swollen right hand. Plaintiff informed Correctional Officers, who refused to provide medical assistance, despite Plaintiff being in pain. On April 24, 2004, Plaintiff captured two mice or rats and gave them to a Correctional Officer to test them for disease. The Correctional Officer failed to take the rodents to medical staff. On May 8, 2004, Plaintiff was given an EKG but the doctor refused to treat Plaintiff for his pain and swelling.
On December 23, 2005, while incarcerated at SCC, Plaintiff was interviewed by Dr. McIntyre, Plaintiff explained about the mouse/rat bite and discussed possible disease transmitted from the bite. Dr. McIntyre ordered x-rays and prescribed Ibuprofen and Prilosec. Nothing was done to treat the swelling.
On June 2, 2006, at SCC, Plaintiff was interviewed by Dr. Sweetland concerning the mouse/rat bite. Dr. Sweetland ordered Plaintiff to take Doxycyline from June 6, 2006 to July 14, 2006, Toradol from June 2, 2006 to June 7, 2006, Methcahamol from July 24, 2006 to August 24, 2006, Naprazen from July 25, 2006 to August 24, 2006, Hydroxychloroquin from August 2, 2006 to October 31, 2006, Prilosec from August 2, 2006 to October 31, 2006, and Prednisone. All of these medications were prescribed without performing a physical or making a diagnosis. Dr. Sweetland was "experimenting and guessing what would work best for whatever disease popped into his mind." (Amd. Cmpl., Doc. 17 at 4.*fn4 ) Dr. Sweetland later ordered a blood panel to see exactly what Plaintiff came into contact with from the mouse/rat bite. Plaintiff continued to be in severe pain, but no further steps were taken.
Plaintiff claims that Dr. Sweetland failed to provide him with adequate medical care, in violation of the Eighth Amendment, and committed medical malpractice under state law.
III. MOTION TO DISMISS FEDERAL CLAIM FOR FAILURE TO EXHAUST
Defendant seeks to dismiss this action on the ground that Plaintiff failed to exhaust his administrative remedies with regard to the Eighth Amendment claim before filing suit.
A. Exhaustion of Remedies Requirement
Section 1997e(a) of the Prison Litigation Reform Act of 1995 ("PLRA") 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." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (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, 121 S.Ct. 1819 (2001), and theexhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which Defendant has the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216, 127 S.Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
The Court takes judicial notice of the fact that the California Department of Corrections and Rehabilitation ("CDCR") 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©. In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378 (2006); McKinney, 311 F.3d at 1199-1201.
Defendant argues that this action should be dismissed because Plaintiff failed to exhaust his administrative remedies before filing suit with regard to his claims against Dr. Sweetland, as required by the PLRA. Defendant submits evidence that between 1999 and March 2007, Plaintiff obtained Director's Level reviews for only two prison grievances, identified as Log Numbers PVSP-07-02882 and SCC-06-00004. (Declaration of D. Foston, Doc. 84-2 at ¶4 and Attachment 1.) Plaintiff also filed an appeal Log Number SCC-07-00158, concerning his medical care. Id. Defendant argues that none of these three appeals served to exhaust Plaintiff's remedies.
Log Number PVSP-07-02882 concerns a claim by Plaintiff that he is entitled to a mobility impairment vest. (Exh. A to Motion to Dismiss ("Motion"), Doc. 84-1 at 2-14.) Defendant argues that the subject matter of this appeal is not relevant to this lawsuit
Log Number SCC-06-00004 is related to Plaintiff's claim that he received inadequate treatment following a rat bite. (Id. at 20-24.) However, Defendant argues that this grievance does not serve to exhaust Plaintiff's administrative remedies against Dr. Sweetland, because the grievance specifically complained about inadequate treatment from Dr. McIntyre, and the allegations Plaintiff makes against Dr. Sweetland had not yet occurred when Plaintiff filed this appeal. (Id.) The earliest allegation in the Amended Complaint of any action or inaction by Dr. ...