The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), incarcerated at Mule Creek State Prison ("MCSP"). Plaintiff proceeds without counsel, and in forma pauperis, in this action filed pursuant to 42 U.S.C. § 1983, wherein plaintiff alleges deliberate indifference to his serious medical needs. On December 10, 2010, the court found that plaintiff's original complaint stated potentially cognizable claims against defendants Palomino, Lovett and Akintola. Plaintiff thereafter filed an amended complaint, refining his claims against these defendants, which now serves as the operative complaint. (Dkt. No. 11.)
Defendants move to dismiss plaintiff's amended complaint on the grounds that: (1) plaintiff failed to exhaust his administrative remedies as to defendants Palomino and Akintola, and as to some of his allegations against defendant Lovett; and (2) the amended complaint fails to state a cognizable claim against any defendant. (Dkt. No. 18.) Plaintiff timely filed an opposition (Dkt. No. 19), and defendants filed a reply. (Dkt. No. 20.) For the reasons that follow, it is recommended that defendants' motion to dismiss be denied.
II. Plaintiff's Factual Allegations
Plaintiff alleges that he broke his finger (the fourth finger on his right hand), while playing basketball on September 2, 2007, causing "extreme pain." (Dkt. No. 11 at 2.) Plaintiff asserts that defendant Palomino, a nurse assigned to the MCSP A-Yard Medical Clinic, refused to address plaintiff's injury as an emergency, sending him away on September 2, 4, and 5, 2007. (September 3, 2007 was a holiday, Labor Day.) Plaintiff alleges that Palomino waited until September 6, 2007, pursuant to a ducat plaintiff received the evening before, to first examine plaintiff's finger. Pursuant to her examination, Palomino contacted Dr. Hashimoto, who ordered x-rays, which were taken on September 11, 2007. Findings included a break and "significant degenerative changes." The radiologist, Dr. Pepper, contacted Dr. Galloway, who referred plaintiff, on an urgent basis, to orthopedic surgeon Dr. Lovett.
Plaintiff alleges that he was initially seen by defendant Dr. Lovett on September 13, 2007, who obtained urgent authorization to perform surgery. Dr. Lovett performed surgery on plaintiff's finger on September 17, 2007, described as an "open reduction and internal fixation with volar plate resconstructions and right ring dorsal dislocation." (Id. at 4.)
Plaintiff alleges that, on October 1, 2007, he was seen by a MCSP Physician Assistant ("PA"), defendant Akintola, who noted a foul odor and puss emanating from plaintiff's finger. These symptoms were again noted on October 3, 2007, by a nurse who changed the dressing. Plaintiff asserts that, on October 11, 2007, Akintola again saw plaintiff, but stated that he "could not give an adequate diagnosis because plaintiff's MCSP medical chart was missing." (Id. at5.) Nevertheless, Akintola prescribed antibiotics and motrin for plaintiff.
On November 8, 2007, plaintiff had his first post-surgical follow-up appointment with Dr. Lovett, who reportedly noted that plaintiff's symptoms may be caused by arthritis.
Plaintiff alleges that, on November 19, 2007, "a doctor" found that plaintiff had a staph infection, and ordered x-rays. The x-rays, taken and reviewed by radiologist Dr. Pepper, indicated the presence of a dislocated "small residual metallic pin . . . possibly part of a screw or fixation device." (Id. at 6.) Dr. Pepper recommended that an MRI be taken of plaintiff's right hand.
On November 21, 2007, Dr. Hashimoto lanced plaintiff's finger, shot lidocaine into plaintiff's finger, and ordered an orthopedic follow-up. On November 26, 2007, plaintiff was seen by Dr. Tseng, who stated that his follow-up was limited because he had no x-ray results.
On December 21, 2007, Dr. Lovett stated, in an Orthopedic Consultation report, that, "I do not feel [plaintiff] needs physical therapy and does not require any further follow up." (Id.)
Plaintiff alleges that he has been in significant pain since his September 2, 2007 injury, and that he has "permanently lost mobility in my finger." (Id.)
Pursuant to this action, plaintiff seeks general, exemplary and punitive damages, and "such other and further relief the court may deem just and proper." (Id. at 7.)
III. Exhaustion of Administrative Remedies
Defendants move to dismiss this action against defendants Palomino and Akintola, and to narrow the scope of plaintiff's claims against defendant Lovett, based on plaintiff's alleged failure to exhaust administrative remedies. Defendants note that plaintiff brought two pertinent administrative grievances, but exhausted only one, which defendants contend is pertinent only to challenged conduct that occurred within the five months prior to the September 2008 filing of that grievance. Thus, argue defendants, this grievance may not properly be construed to challenge the 2007 conduct of defendants Palomino and Akintola, or, for that matter, the conduct of defendant Lovett prior to April 2008.
The Prison Litigation Reform Act ("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). Pursuant to this rule, prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion also requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules, including deadlines. Woodford v. Ngo, 548 U.S. 81 (2006).
The PLRA requires that administrative remedies be exhausted prior to filing suit. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). The exhaustion requirement is not jurisdictional, but an affirmative defense that may be raised by a defendant in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). See Jones v. Bock, 549 U.S. 199, 216 (2007) ("inmates are not required to specially plead or demonstrate exhaustion in their complaints"); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119.
"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust-a procedure closely analogous to summary judgment-then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120 n.14. 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) ("mixed" complaints may proceed on exhausted claims). Thus, "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.
"The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Jones, 549 U.S. at 218. In California, prisoners are required to lodge their administrative complaint on a CDC Form 602, which requires only that the prisoner "describe the problem and action requested." Cal. Code Regs. tit. 15, § 3084.2(a). In Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009), the Ninth Circuit Court of Appeals adopted the standard enunciated by the Seventh Circuit, which provides that "when a prison's grievance procedures are silent or incomplete as to factual specificity, 'a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.'" Griffin, 557 F.3d at 1120 (reviewing Arizona procedures), quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Thus, in California, "[a] grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Griffin, 557 F.3d at 1120; accord, Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010).
Further, and significantly, absent an express requirement to the contrary (which does not exist in the California prison grievance process), "exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances." Jones, 549 U.S. at 219. It is nonetheless appropriate to require that a prisoner demonstrate, through the administrative grievance process and consistent with the PLRA, that he has standing to pursue his claims against a particular defendant. "[A]t an irreducible minimum, Art[icle] III [of the United States Constitution] requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.' ...