ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On October 7, 2010, the court dismissed plaintiff's complaint and granted him leave to file an amended complaint containing factual allegations concerning each of the five named defendants and clarifying plaintiff's efforts to exhaust administrative remedies prior to initiating this lawsuit. On October 19, 2010, plaintiff filed a document styled, "Permission For Leave To File Plaintiffs [sic] Amendment [sic] Complaint," (Doc. No. 8) which the court construes as plaintiff's amended complaint.
I. Exhaustion of Administrative Remedies
A. Exhaustion Requirement
By the Prison Litigation Reform Act of 1995 ("PLRA"), Congress amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The United States Supreme Court has ruled that exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. Booth v. Churner, 532 U.S. 731, 741 (2001); see also Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). The Supreme Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. Booth, 532 U.S. at 741 n.6. Moreover, because proper exhaustion is necessary, it has been held that a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 90-93 (2006).
In California, prisoners may appeal "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Most inmate appeals progress through three levels of review. See id. § 3084.7. The third level of review constitutes the decision of the Secretary of the California Department of Corrections and Rehabilitation and exhausts a prisoner's administrative remedies. See id. § 3084.7(d)(3).
The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative defense. See Jones v. Bock, 549 U.S.199, 216 (2007) ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints."); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003). The defendants bear the burden of raising and proving the absence of exhaustion. Wyatt , 315 F.3d at 1119. When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120. See also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). On the other hand, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
B. Plaintiff's Emergency Appeal
In his original complaint, plaintiff used the courts form complaint for a § 1983 action and answered both "yes" and "no" as to whether the prison grievance process was completed. (Compl., Doc. No. 1 at 2.) Plaintiff also stated in the form complaint that he had labeled his grievance as a "'medical emergency'" so that it could be processed "expediently;" however, prison officials "failed to timely respond to plaintiff's medical emergency" as required by the regulations. (Id.) In the court's October 7, 2010 order, plaintiff was advised regarding the exhaustion requirement and directed to clarify in his amended complaint whether his emergency medical grievance had been processed to the third or director's level of review before plaintiff filed his civil rights action in this court.
In his amended complaint, plaintiff explains that he submitted an emergency medical grievance, dated March 9, 2010, with respect to the medical issue he described as follows:
Dr. A Nangalama-M, the other female Dr. I was treated by, and the Dr. who handled my upper G.I. examination, all have failed to adequately and effectively treat my internal illness of a ulcer, gastrosinal reflex disorder, or whatever "the exact illness is." I have have [sic] treatment for 2 years now. I was also denied further follow-up upper G.I. exam, and treatment, except for medication that has been recently (6 months ago) limited. Also I need a special bland diet and taken to (transferred [sic]) a facility medical were [sic] I can receive [sic] adequate diets and treatment. Furthermore, I requested a transfer to Vacaville, and additional medicines for internal pains, sharp, pin-like aches, need methodone [sic], vicadin [sic], or codienes [sic].
(Doc. No. 8 at 21.) Plaintiff contends that he should have received a response to his emergency grievance within four to six days. He now indicates that he was notified by prison officials fourteen days after submitting the grievance, that his grievance was rejected for emergency processing.*fn1 Plaintiff's grievance was bypassed for informal review and at the first level of review, the appeal was partially granted on April 13, 2010. (Id. at 21-22 and 19-20.) Dr. Ali, who responded to plaintiff's inmate appeal, explained his findings as follows:
I met with you on April 7, 2010 to address your appeal. You saw Dr. Nangalama on March 25th, and labs were drawn on April 1st. I reviewed the results with you, and you agreed to do more labs on your stool for H. Pylori antigen for peptic ulcer disease. I also discussed that methadone, Tylenol-3, and Vicodin are not indicated for peptic ulcer disease. Today your weight is 202 pounds as compared to 196 pounds on June 24, 2009. There is no indication for a bland diet, vitamins or nutritional ...