The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTIONS TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED OBJECTIONS, IF ANY, DUE IN THIRTY DAYS (Docs. 27, 28, 38.)
Ramon Mora ("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 on July 23, 2008. (Doc. 1.) This action now proceeds on the Amended Complaint filed by Plaintiff on March 26, 2009, against defendants S. Salahuddin and C. Edwards ("Defendants") for inadequate medical treatment in violation of the Eighth Amendment, and negligence under state law.*fn1 (Doc. 7.)
On September 15, 2010, defendant Salahuddin filed a motion for
judgment on the pleadings, on the ground that Plaintiff failed to
comply with the California Tort Claims Act ("CTCA").*fn2
27.) On September 24, 2010, defendant Salahuddin filed a motion to
dismiss for failure to exhaust administrative remedies. (Doc. 28.) On
March 16, 2011, defendant Edwards filed a motion for judgment on the
pleadings, on the ground that Plaintiff failed to comply with the
CTCA, and a motion to dismiss for failure to exhaust administrative
remedies. (Doc 38.) On August 1, 2011, Plaintiff filed oppositions to
the motions.*fn3 (Docs. 50, 51.) On August 5, 2011,
Defendants filed a reply. (Doc. 52.) Defendants' motions to dismiss
and motions for judgment on the pleadings are now before the Court.
II. PLAINTIFF'S ALLEGATIONS AND CLAIMS*fn4
Plaintiff was a state prisoner at Pleasant Valley State Prison ("PVSP") in Coalinga, California, when the events at issue allegedly occurred. Defendants S. Salahuddin and C. Edwards were dentists employed at PVSP. Plaintiff alleges as follows in the Amended Complaint.
On or about August 6, 2007, Plaintiff was seen by defendant Salahuddin, a dentist, for the extraction of his infected wisdom tooth. Defendant Salahuddin used very little novocaine and caused Plaintiff serious pain during the procedure. Further, defendant Salahuddin failed to clear up the infection prior to surgery and failed to prescribe antibiotics following surgery, resulting in the spread of infection. The day after surgery, Plaintiff's face was red and swollen. The condition continued to worsen and the swelling hardened, became enlarged, and spread to Plaintiff's neck. By August 8, 2007, Plaintiff could barely swallow or speak.
On or about August 9, 2007, Plaintiff was seen by defendant Edwards, another dentist, who was shocked at the swelling and prescribed antibiotics. Defendant Edwards said he would check on Plaintiff, but did not see Plaintiff again until August 10, 2007, at which time Plaintiff's face was a "red blur of pain," his throat was swelling shut, and he could not "breathe, eat, drink, talk or sleep." (Doc. 7, Amend. Comp., p. 4.) When Plaintiff was seen by defendant Edwards, he could not speak and had to write down his symptoms. Plaintiff was taken to an outside hospital approximately four hours later, where he was told he needed emergency surgery or his throat could swell shut and kill him. Plaintiff was hospitalized for ten days following surgery.
Now, Plaintiff has constant earaches and cannot open his mouth all the way. Also, Plaintiff's jaw now makes noises and there are two enormous scars on his neck where tubes had to be placed.
III. MOTION TO DISMISS FOR FAILURE TO EXHAUST
Defendants seek to dismiss this action on the ground that Plaintiff failed to exhaust his administrative remedies 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 the exhaustion 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 Defendants have 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 ...