The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a federal prisoner proceeding in forma pauperis pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Although plaintiff and defendant Dr. Redix have consented to the jurisdiction of the undersigned, see docket #5 and # 25, the other defendants have not filed a consent form. A district judge will be assigned to this case. Pending before the court is defendants' June 17, 2011 motion to dismiss the first amended complaint, to which plaintiff filed his opposition on September 1, 2011, after which defendants filed their reply on September 29, 2011.*fn1
Summary of Plaintiff's Allegations
Plaintiff names the following as defendants: Dr. Louis Redix-BOP contract employee; Dr. Ross Quinn at FCI-Victorville; Assistant Health Administrator Louis Sterling at FCI-Victorville; Health Services Administrator Cathy Garrett at FCI-Safford; Dr. Eduardo Ferriol at FCI-Safford, Physician's Assistant Roberto Acosta at FCI-Safford.*fn2 Plaintiff claims defendants were deliberately indifferent to a serious medical condition in the treatment he received for his shoulder, beginning with an allegedly failed reconstructive surgery for "Acromioclavicular joint separation" repair, performed by a Bureau of Prison's (BOP) contract surgeon, defendant Redix, on July 22, 2008*fn3 (which required later corrective surgery), after which plaintiff was subjected to inadequate post-operative care, including being prescribed inadequate pain medication and other medical care, including a brace, by defendant Quinn; being denied medical treatment by defendant Sterling with respect to a pin protruding from plaintiff's shoulder post-surgery; and being denied pain medication by defendants Acosta and Ferriol, both of whom also denied a prescribed brace. First Amended Complaint (FAC), pp. 1-6. Defendants Ferriol and Garrett in March of 2009 denied necessary corrective surgery. Id., at 6. Defendants Acosta and Ferriol, as well as defendant Garrett, denied pain medication to plaintiff after his second surgery in September, 2009. Id., at 7. In addition to his Eighth Amendment claims, plaintiff alleges he was subjected to medical malpractice by defendant Redix. Id., at 8-9. Plaintiff seeks compensatory and punitive damages and injunctive relief. Id., at 9.
The federal defendants seek to distinguish themselves from defendant Redix and indeed it appears that he is expressly not represented in the present motion to dismiss. Defendant Redix, along with plaintiff, consented to the jurisdiction of the undersigned and signed a waiver of service of summons on March 22, 2011, in documents filed in the case docket on March 31, 2011, and April 4, 2011, respectively. However, as no further response on behalf of defendant Redix has been filed, the court must recommend that he be found to be in default.
The "federal defendants," who are identified as defendants Quinn, Sterling, Garrett, Ferriol and Acosta, but not, as noted, defendant Redix, move to dismiss: 1) the Bivens claims pursuant to non-enumerated Fed. R. Civ. P. 12(b) for failure to exhaust administrative remedies as required under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a); 2) the Bivens official capacity claims; 3) any Fourteenth Amendment claim; 4)the medical malpractice claim, to the extent it is construed as arising under the Federal Tort Claims Act (FTCA) because it should only be brought against the United States, not named as a defendant; also, if construed as an FTCA claim, for lack of jurisdiction for failure to exhaust administrative remedies and under the independent contractor exception to the FTCA, 28 U.S.C. § 2671; 5) for lack of proper venue under Fed. R. Civ. P. 12(b)(3) because most of the conduct at issue occurred at Federal Correctional Institution (FCI) I - Victorville, located within the Central District of California, and at FCI-Safford, located in the District of Arizona. Notice of Motion, pp. 1-2; Memorandum of Points and Authorities in support of Motion to Dismiss, pp. 7-18. *fn4
1) Administrative Exhaustion
Legal Standard under Non-Enumerated Fed.R.Civ.P. 12(b)
In a motion to dismiss for failure to exhaust administrative remedies under non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure, defendants "have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The parties may go outside the pleadings, submitting affidavits or declarations under penalty of perjury, but plaintiff must be provided with notice of his opportunity to develop a record. Wyatt v. Terhune, 315 F.3d at 1120 n.14. The court provided plaintiff with such fair notice by Order, filed on December 8, 2010 (docket # 15).
Should defendants submit declarations and/or other documentation demonstrating an absence of exhaustion, making a prima facie showing, plaintiff must refute that showing. Plaintiff may rely upon statements made under the penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court's attention those parts of the complaint upon which plaintiff relies. If the court determines that plaintiff has failed to exhaust, dismissal without prejudice is the appropriate remedy for non-exhaustion of administrative remedies. Wyatt v. Terhune, 315 F.3d at 1120.
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) 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." Inmates seeking injunctive relief must exhaust administrative remedies. Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999). In Booth v. Churner, 532 U.S. 731,741, 121 S.Ct. 1819');">121 S. Ct. 1819, 1825 (2001), the Supreme Court held that inmates must exhaust administrative remedies, regardless of the relief offered through administrative procedures. Therefore, inmates seeking money damages must also completely exhaust their administrative remedies. Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819');">121 S. Ct. 1819 (inmates seeking money damages are required to exhaust administrative remedies even where the grievance process does not permit awards of money damages). The United States Supreme Court has held that exhaustion of administrative remedies under the PLRA requires that the prisoner complete the administrative review process in accordance with the applicable procedural rules. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378');">126 S. Ct. 2378 (2006). Thus, in the context of the applicable PLRA § 1997e(a) exhaustion requirement, any question as to whether a procedural default may be found should a prisoner plaintiff fail to comply with the procedural rules of a prison's grievance system has been resolved: the PLRA exhaustion requirement can only be satisfied by "proper exhaustion of administrative remedies....," which means that a prisoner cannot satisfy the requirement "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Woodford v. Ngo, supra, at 84, 126 S. Ct. at 2382. Moreover, 42 U.S.C. § 1997e(a) provides that no action shall be brought with respect to prison conditions until such administrative remedies as are available are exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002), but see Rhodes v. Robinson (9th Cir. 2010) (PLRA exhaustion requirement satisfied with respect to new claims within an amended complaint so long as administrative remedies exhausted prior to filing amended complaint).
Administrative Appeal Process
The Ninth Circuit has delineated the administrative grievance procedures implemented by the federal Bureau of Prisons (BOP):
The BOP grievance process is set forth at 28 C.F.R. § 542.13--.15. As a first step in this process, an inmate normally must present his complaint informally to prison staff using a BP--8 form. If the informal complaint does not resolve the dispute, the inmate may make an "Administrative Remedy Request" concerning the dispute to the prison Warden using a BP--9 form. FN1 The BP--8 and BP--9 are linked. Both forms involve a complaint arising out of the same incident, and both forms must be submitted within 20 calendar days of the date of that incident. 28 C.F.R. § 542.14(a). An extension of time is available upon a showing of valid reason for delay. Section 542.14(b) provides a non-exhaustive list of reasons that justify an extension of time. Valid reasons "include ... an extended period in-transit during which the inmate was separated from documents needed to prepare the Request or Appeal." Id.
FN1. If a complaint is "sensitive," such that "the inmate's safety or well-being would be placed in danger if the Request became known at the institution," the inmate may bypass the Warden and file a BP--9 directly with the BOP Regional Director. 28 C.F.R. § 542.14(d).
If the Warden renders an adverse decision on the BP--9, the inmate may appeal to the Regional Director using a BP--10 form.
28 C.F.R. § 542.15(a). The BP--10 must be submitted to the Regional Director within 20 calendar days of the date of the Warden's decision. Id. As with the time period for filing a BP--9, an extension of time is available upon a showing of a valid reason. Id. Section 542.15(a) provides that "[v]alid reasons for delay include those situations described in § 542.14(b)." Id.
The inmate may appeal an adverse decision by the Regional Director to the Central Office (also called the General Counsel) of the BOP using a BP--11 form. Id. The BP--11 must be submitted to the Central Office within 30 calendar days from the date of the Regional Director's decision. Id. As with the time period for filing a BP--9 and a BP--10, an extension is available upon the showing of a valid reason as described in § 542.14(b). Id.
Plaintiff avers in the first amended complaint that he has exhausted all issues for PLRA purposes raised under the Bureau of Prisons (BOP) administrative remedy procedure in Appeal # 540693 from FCI-Safford (AZ) and in Appeal # 564241 from FCI-Victorville (CA). FAC, p. 1. Defendants counter that he failed to exhaust his administrative remedies because he did not complete his appeals to the Office of General Counsel (OGC) and that his Bivens claims against the federal defendants must be dismissed. MTD, pp. 11, 13.
Although plaintiff has identified Appeal # 540693 as involving the FCI- Safford defendants, defendants records' (uncontested on this point) indicate that plaintiff was housed at Victorville from October 11, 2007, until December 9, 2008, and located at FCI-Safford from December 17, 2008 to December 16, 2009. MTD, Declaration of Sarah Schuh, ¶ 4 A & B, Ex. B-1, B-2. *fn5 Therefore, this appeal necessarily must encompass plaintiff's claims against defendants at Victorville (Quinn, Sterling) and certain of his claims against defendants at Safford (Garrett, Ferriol, Acosta). More precisely, Appeal # 540693 encompasses plaintiff's Eighth Amendment claims against Quinn, Sterling, Garrett, Ferriol, and Acosta regarding the alleged inadequate medical care he received after the July 22, 2008 surgery, in the form of denying him pain medication, a brace, corrective surgery, other medical care up to the time of his second surgery on September 1, 2009. The court will here chart the dates set forth by defendants as to Appeal # 540693:
May 29, 2009- grievance regarding pain medication directed to the warden; MTD, p. 12, Declaration of Sarah Schuh, ¶ 6, Exhibits C-2,*fn6 D-1.*fn7 June 11, 2009- warden provided a response with an explanation; Id., Schuh Dec. ¶ 6 A, Exs. C-2, D-2.*fn8
July 2, 2009-regional director received appeal;
Id., Schuh Dec. ¶ 6B, Exs. C-3,*fn9 D-3.*fn10 July 24, 2009-regional director responded with an explanation-plaintiff informed he could appeal to OGC within 30 days;
Defendants contend that thereafter, plaintiff never submitted, or re-submitted, his appeal to the OGC level and at this point he is foreclosed from doing so. MTD, p. 14. Plaintiff does not dispute this; rather, it is plaintiff's position that the BOP by attempting corrective surgery on September 1, 2009, was responding to his appeal regarding inadequate pain management, lack of physical therapy and for additional surgery. Opposition (Opp.) (docket # 35), pp. 4-5. Plaintiff does offer a somewhat differing chronology of his administrative remedy requests regarding this appeal within his first amended complaint, stating that he filed a BP-8 (informal resolution) request which was denied by defendant Garrett but not signed by her. He thereafter alleges that his BP-9 grievance was filed with the warden in Feb., 2009, followed by an appeal to the regional office (BP-10) in March 2009. However, plaintiff states that on May 22, 2009, he was told that the BP-10 could not be located or did not exist, after which he filed another BP-9 on May 27, 2009, and re-filed a BP-10 on June 28, 2009. Plaintiff claims that while waiting for a response to the BP-10 [regional director], the corrective surgery was performed. FAC, p. 6, ¶¶ 15-16. Plaintiff contends the follow-up surgery, which he maintains showed that "extensive permanent damage" had been done by defendant Redix in the initial negligently performed procedure, should not absolve defendants of the prior negligence causing permanent disability to which he was subjected as well as the lack of proper after-care, which amounted to deliberate indifference to his pain and the suffering he endured in the interim period between the surgeries. Opp., at 5. Plaintiff therefore is maintaining that once he received the remedy of corrective surgery in response to his appeal there was no point in proceeding to the final level of appeal. In their reply, defendants note that plaintiff concedes not having proceeded to the OGC, that this admission warrants dismissal for failure to exhaust administrative remedies, and that at this point he can no longer proceed to the OGC. Reply (docket # 37), pp. 2-3, citing 28 C.F.R. §§ 542.15(a)*fn12 and 542.18.*fn13
Defendants have submitted a copy of plaintiff's handwritten grievance, dated May 27, 2009, but they have failed to note the substance of the claims therein as well as the dates identified. MTD, Schuh Dec., Ex. D (docket # 31-3), p. 18. In that grievance plaintiff states the following (see also, footnote 7):
This is a continuation of a B-8 filed 1-26-09. I then filed a B-10[:] the first part March, then on 5-22-09 was notified that both my B-8 and B-10 were lost. I am still in debilitating pain and am requesting pain medication to lessen my pain. The request in the attached B-8[.] I am still requesting correction of the decision made by medical.
In the June 11, 2009, warden's response, the warden references plaintiff's "Request for Administrative Remedy dated March 27, 2009 in which you are requesting pain medication."*fn14 Id., at Ex. D, p. 19. This date provided by the warden in his decision as to which request he is responding lends credence to plaintiff's claim that he filed earlier grievances: a BP-10 in March [of 2009] and later, on May 22, 2009, notwithstanding that he had evidently been told his earlier BP-8 and BP-10[s] had been lost, and even though the form to be used to file a request to the warden is a BP-9. (Of course, as noted above, plaintiff alleged in his amended complaint that he had filed a BP-9 to the warden in February, 2009). This gap between March 27, 2009, identified by the warden, and May 27, 2009, is not explained by defendants, nor is there adequate evidence produced to show that the date the warden cited for the grievance being addressed was only inadvertently identified as March 27, 2009, when he actually meant May 27, 2009. Under 28 C.F.R. § 542.18 (see footnote 13 above), the warden has 20 calendar days to ...