The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss (Doc. 18). Plaintiff filed an opposition to the motion, and defendants filed a reply.*fn1
This action proceeds on plaintiff's amended complaint (Doc. 13), against defendants Reichert, Roche, and Starcevich. Plaintiff alleges the defendants were deliberately indifferent to his serious medical needs. In his amended complaint plaintiff alleges that his Eighth Amendment rights have been violated by the intentional denial and delay in obtaining proper medical treatment for his injured knee, which resulted in additional injuries to his arm and shoulder. Specifically, plaintiff contends that Dr. Starcevich denied him an MRI with contrast of his knee, and failed to order physical therapy. His injured knee then "gave out" as he tried to stand up, he fell and injured his right arm and shoulder. PA Reichert and Dr. Roche then failed to consult a neurologist resulting in substantial harm to his arm and shoulder. He claims PA Reichert denied him proper treatment, and failed to consult a proper physician, resulting in the paralysis of his arm. Plaintiff alleges he was then seen by Dr. Roche, who is not a neurologist. However, the treatment prescribed by Dr. Roche was similarly ineffective, and he was again denied and delayed in being evaluated by a neurologist. Plaintiff then saw a physical therapist, who recommended plaintiff be referred to a neurologist. Finally, plaintiff was seen at the Renown Regional Medical Center in Reno, Nevada. He was evaluated by a neurologist and an MRI was ordered. However, he claims he had to suffer for weeks prior to receiving the proper treatment, resulting in additional pain and the need for more extensive medical care.
Defendants filed the pending motion to dismiss on the basis that plaintiff failed to exhaust his administrative remedies prior to filing this action. They argue that plaintiff's third level inmate appeal was properly screened out, and plaintiff did not cure the defects therein and resubmit it. Plaintiff opposes the motion on the basis that the third level appeal was improperly screened out, and on the alleged strength of the merits of his claim.
A motion to dismiss based on a prisoner's failure to exhaust administrative remedies is properly the subject of an unenumerated motion under Federal Rule of Civil Procedure 12(b). See 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 1119-20. Where the court looks beyond the pleadings to a factual record in deciding the motion to dismiss, which is "a procedure closely analogous to summary judgment," the court must assure that the plaintiff has fair notice of his opportunity to develop a record. Id. at 1120 n.14 (referencing the notice requirements outlined in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). Defendants bear the burden of establishing that the plaintiff failed to exhaust administrative remedies prior to filing suit. See Wyatt, 315 F.3d at 1120. If the court concludes that administrative remedies have not been exhausted, the unexhausted claim should be dismissed without prejudice. See id. at 1120; see also Jones v. Bock, 127 S. Ct. 910 (2007).
Prisoners seeking relief under § 1983 must exhaust all available administrative remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The Supreme Court addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint because lack of exhaustion is an affirmative defense which must be pleaded and proved by the defendants; (2) an individual named as a defendant does not necessarily need to be named in the grievance process for exhaustion to be considered adequate because the applicable procedural rules that a prisoner must follow are defined by the particular grievance process, not by the PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not all, claims are unexhausted.
The Supreme Court also held in Woodford v. Ngo that, in order to exhaust administrative remedies, the prisoner must comply with all of the prison system's procedural rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, exhaustion requires compliance with "deadlines and other critical procedural rules." Id. at 90. Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance which affords prison officials a full and fair opportunity to address the prisoner's claims. See id. at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the quantity of prisoner suits "because some prisoners are successful in the administrative process, and others are persuaded by the proceedings not to file an action in federal court." Id. at 94.
A prison inmate in California satisfies the administrative exhaustion requirement by following the procedures set forth in §§ 3084.1-3084.8 of Title 15 of the California Code of Regulations.*fn2 In California, inmates "may appeal any policy, decision, action, condition, or omission by the department or its staff that the inmate . . . can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). These regulations require the prisoner to proceed through three levels of appeal. See Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.2, 3084.7. A decision at the third formal level, which is also referred to as the director's level, is not appealable and concludes a prisoner's departmental administrative remedy. See id. Departmental appeals coordinators may reject a prisoner's administrative appeal for a number of reasons, including untimeliness, filing excessive appeals, use of improper language, failure to attach supporting documents, and failure to follow proper procedures. See Cal. Code Regs. tit. 15, §§ 3084.6(b). If an appeal is rejected, the inmate is to be provided clear instructions how to cure the defects therein. See Cal. Code Regs. tit. 15, §§ 3084.5(b), 3084.6(a). Group appeals are permitted on the proper form with each inmate clearly identified, and signed by each member of the group. See Cal. Code Regs. tit 15, § 3084.2(h). Currently, California regulations do not contain any provision specifying who must be named in the grievance.
Here, defendants argue plaintiff failed to exhaust his administrative remedies as his third level appeal was rejected and he failed to cure the defect and resubmit it for final consideration. Defendants contend that the third level appeal was properly rejected as plaintiff attempted to alter the appeal from his original issue. Plaintiff counters that the appeal was improperly rejected because he did not alter what his complaint was about, he just provided additional support thereto. In addition, plaintiff argues that the merits of his case are strong enough that the court is required to look beyond the exhaustion issue and grant a judgment in his favor.
There is no question here that plaintiff did not receive a final decision at the third level of review. The parties agree that plaintiff submitted a third level appeal, but that appeal was rejected and plaintiff did not refile at the third level. The issues, therefore, are whether the grant and/or partial grant at the lower levels was sufficient to exhaust plaintiff's administrative remedies, and whether the third level appeal was properly screened out.
The court recognizes that the Ninth Circuit has determined that there are times when an inmate receives a favorable ruling during his administrative appeals process that he is not required to complete the appeals process to the third and final level. See Harvey v. Jordan, 605 F.3d 681 (9th Cir. 2010). In Harvey, the Court stated "[a]n inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in order to exhaust his administrative remedies." Id. at 685. In Harvey, the plaintiff (challenging due process relating to a prison disciplinary hearing) had requested a hearing with specific video tape evidence, or that his disciplinary be dropped and his status restored. The prison officials granted his first request, that he be given a hearing and access to the videotape. See id. This was the exact relief the plaintiff had requested, and the plaintiff therefore did not appeal. The issue, however, was that he did not receive the relief granted - the hearing with videotape - for over five months. The Ninth Circuit determined that where a prisoner has been granted the relief requested, which was to his satisfaction, it is not his responsibility to ensure the prison officials actually provide that relief, even where the prisoner has set forth an alternative form of relief. See id.
In this case, plaintiff complained in his original 602 inmate grievance appeal about the amount of time that had passed since his physical therapist began requesting an MRI with contrast (three months) and that the orthopedic at Renown Medical had since ordered the same test. He requested an MRI for his left knee and, as for his right arm, "[i]f no medical doctor or physician assistant has the right medical credentials; please don't let them try to diagnose a medical condition they are not qualified for." (Doc. 28 at 43). Plaintiff's 602 was partially granted at the first level, in that plaintiff had been seen by Dr. Starcevich, who ordered an MRI of his left knee. It was stated that the MRI would be conducted within 30 days. In addition, plaintiff's physical therapy was to continue, he was to be scheduled for a follow-up with his primary care physician within 60 days, and was to be scheduled for a second ...