The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. Defendants Probst, Craddock, Uribe, Smith, Williams, Griffith, Felker, McDonald, Perez, Peddicord, Keating, Harrod, Harper and Shaver (defendants), all current or former employees of the California Department of Corrections and Rehabilitation (CDCR), have filed a motion to dismiss.
First, defendants assert plaintiff's claim for "intentional and negligent infliction of emotional distress," which is identified as "Count Eleven" in plaintiff's complaint, is barred because plaintiff did not comply with the requirements of the California Tort Claims Act by presenting this claim to the California Victim Compensation and Government Claims Board. Plaintiff must allege compliance with California's Tort Claims Act in his complaint to proceed on tort claims arising under California law. Cal. Gov't Code §§ 905.2, 910, 911.2, 945.4, 950-950.2; Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Plaintiff has not alleged compliance in his complaint nor does he assert that he complied in his opposition to defendants' motion to dismiss. Therefore the court will recommend that "Count Eleven" be dismissed.
II. Failure To Exhaust Administrative Remedies
Defendants also argue that some of plaintiff's claims should be dismissed for failure to exhaust administrative remedies. 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, 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 (CDC) 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. All steps 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 generally will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002).
Administrative remedies must be "properly" exhausted which means use of all steps put forward by the agency. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Also, "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.
Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119.*fn1
In "Count 2" of his complaint, plaintiff alleges defendant Uribe
rights arising under both the First and Eighth Amendments.*fn2
Plaintiff asserts that on or about March 8, 2007, he could
not move from his bed and experienced excruciating pain in his left
foot and shoulder. Complt., ¶ 33. Defendant Uribe, a correctional
officer, was summoned to assist plaintiff. Id., ¶¶ 8 & 34. After being
apprised of plaintiff's condition, defendant Uribe failed to offer any
assistance. Id., ¶¶ 35-36. Plaintiff spent that evening in pain. Id.,
¶ 38. The next day plaintiff was still in pain and was diagnosed with
having gout. Id., ¶ 38. Plaintiff asserts Uribe failed to assist
plaintiff in retaliation for plaintiff having filed "complaints"
against Uribe. Id., ¶
Defendants assert plaintiff did not file a grievance regarding his allegations against defendant Uribe. However, plaintiff points to evidence indicating he did grieve Uribe's failure to provide him with medical care on March 8, 2007. Opp'n, Ex. F. Apparently, the grievance was screened out because the person reviewing the grievance determined that it was received on April 13, 2007, which was after the fifteen-day deadline for filing grievances. Id., Ex. F at 7. On the grievance form, plaintiff indicated that he submitted his grievance on March 15, 2007. Id., Ex. F at 8. Also, in his declaration attached to his opposition, plaintiff reaffirms he filed his grievance on March 15, 2007. Pl.'s Decl., ¶ 7.*fn3
Defendants dispute that plaintiff submitted his grievance on March 15, 2007, but fail to point to anything upon which this court could reasonably base a finding that plaintiff did not submit the grievance when he says he did. Defendants ask that the court hold an evidentiary hearing to address when the grievance was submitted. Defendants indicate if the court were to grant an evidentiary hearing defendants would present evidence rebutting plaintiff's assertion that he filed a timely grievance including evidence indicating the following: "(1) when officers receive grievances, they promptly place them into an appeals box; (2) each work day, the appeals boxes are delivered to an appeals coordinator and (3) the appeals coordinator always date stamps the grievance on the date it was received." Reply at 4-5. But, defendants fail to indicate why such evidence was not presented with their reply brief or otherwise indicate why an evidentiary hearing is necessary to determine when plaintiff filed his grievance.
For these reasons, the court will recommend that defendants' motion to dismiss be denied with respect to plaintiff's Eighth Amendment claim against defendant Uribe. However, the court will recommend that plaintiff's First Amendment claim be dismissed because there is nothing before the court indicating plaintiff complained through the grievance process that defendant Uribe's ...