The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner proceeding pro se who seeks relief pursuant to 42 U.S.C. § 1983. Defendants Lee, O'Laughlin, Vasquez, Casey, Hayward,*fn1 Dochow and Curry, filed their answer on April 21, 2011, while defendant Damiano, filed his answer on January 24, 2012. This court's review of the docket indicates defendant Johnston does not appear to have filed a timely response; therefore, the court will direct defendant Johnston, who filed an executed waiver of service on April 18, 2011, to show cause why he/she should not be found to be in default. Pending before the court is defendants' motion for dismissal or partial dismissal for failure to exhaust administrative remedies, pursuant to non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure, filed on February 27, 2012, to which plaintiff filed his opposition on March 1, 2012. Subsequently, although plaintiff had previously been informed of the requirements to oppose a motion to dismiss for failure to exhaust pursuant Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003), in light of Woods v. Carey, --- F.3d ----, 2012 WL 2626912 (9th Cir. July 6, 2012), plaintiff was again provided Wyatt notice and granted a further opportunity and was granted 21 days to file additional evidentiary submissions. See Order, filed on July 12, 2012. On July 23, 2012, plaintiff supplemented his opposition in the form of a declaration with attached exhibits.
Plaintiff proceeds in his amended complaint, filed on September 2, 2010,*fn2 against defendants Sergeant Curry; Correctional Officer (C/O) Douchow [Dochow]*fn3 ; C/O Vasquez; CCI Johnston; Appeal Coordinator Casey; Dr. Lee; Registered Nurses Pete [Peter Damiano]*fn4 and Diana O'Laughlin; Captain Hayward. The amended complaint has been modified by order, filed on March 22, 2011, wherein claims against seven other defendants were dismissed as was any claim of conspiracy against defendants Johnston and Hayward. As a result of plaintiff's having elected not to take an opportunity to amend to attempt to frame any claim of retaliation, this case proceeds only on plaintiff's claim that defendants were deliberately indifferent to a serious medical condition in violation of the Eighth Amendment, as stated in the Order, filed on October 8, 2010, dismissing certain claims and defendants and granting plaintiff leave to amend, as to the remaining defendants "the undersigned finds that plaintiff has framed a somewhat limited but colorable Eighth Amendment claim of deliberate indifference to a serious medical condition in his amended complaint." This also signifies there is no colorable claim of racial discrimination upon which this action proceeds.*fn5
Plaintiff alleges that he suffered a work-related injury, on August 11, 2008, in the Folsom State Prison (FSP) culinary [area], after which he was "redlined," from August 18, 2008, until November 27, 2008. Defendants Culinary Sergeant Curry, and Correctional Officers (C/O's) Dochow and Vasquez refused to file an injury report for plaintiff, until plaintiff filed an appeal, after which the culinary staff filed the report. Plaintiff was given work restrictions, a chrono and a 128 notice of removal from his job. Although defendant Johnston was made aware of plaintiff's condition, he refused to honor the 128 notice or otherwise consider plaintiff's condition. Defendant Johnston told the culinary staff to give him a 115 Rules Violation report and fire him. Amended Complaint (AC), p. 4.
When plaintiff appealed, defendant Casey (appeal coordinator) told plaintiff he would neither take him out of his job or honor the 128 because he believed plaintiff was "faking." Plaintiff was forced back into the job and, on February 6, 2009, was compelled to pick up cake-filled pans and push hot carts up runways. Following his being found guilty on a 115 for refusing to work, despite the staff's awareness that he "was not physically capable of doing non-light" duties, plaintiff was switched for medical care from his then current doctor to defendants Dr. Lee and RN Pete [Peter Damiano], who refused to provide any medical care beyond pain pills, and stated that they were not going to get involved and believed that plaintiff "'just didn't want to work.'" Plaintiff saw defendant RN O'Laughlin, on Feb. 13, 2009, who told plaintiff that he had to prove he was hurt and that she "'would not grant further medical evaluations.'" Id.
On April 13, 2009, plaintiff was placed on C status with his privileges "and date taken" while he continued to be forced to work against his limitations every day. Plaintiff was given harsher work duties in the breadroom and had to lift bread racks, involving constant bending and standing for long hours. His injury was re-aggravated, which caused plaintiff to undergo physical therapy and "more lay-ins." Plaintiff alleges medical staff refused to evaluate him further and that defendant Lee stated on May 4, 2009, "'that it would cost too much money when we can just send you to therapy which we'll have to do anyway.'" AC, p. 5.
Plaintiff spoke with defendant Hayward, but, on March 6, 2009, although aware of his condition and removal order, she refused to honor his documents. On May 3, 2009, defendant Vasquez kept forcing "plaintiff to do harsh labor without breaks," telling him that "'once you came to prison you no longer have rights.'" Plaintiff underwent such stress that he developed a heart condition, and had "extremely high blood pressure and heart pains." He also had to speak to a mental health advisor, is still taking pain pills and still suffers "moderate pain" in his back. Id. Plaintiff seeks money damages. Id., at 3.
Exhaustion takes on several meanings in this motion including that the court's resources are often exhausted dealing with this very threshold issue.
Defendants seek dismissal or partial dismissal for a failure to exhaust administrative remedies, as follows: as to defendant Dr. Lee and defendants RN Damiano (who filed an answer) and RN O'Laughlin -- Appeal Log Nos. FSP-26-09-10288 (did not pursue to second or third level); FSP-26-09-10048 (exhausted but defendant Lee was only the reviewer [but does mention Damiano]); FSP-08-01310 (exh no claim); FSP-09-00345 (does not exh claims against Dochow); FSP-09-00152 (does not exh claims against Hayward and Casey; FSP-09-00323 (does not exh claims of racial discrimination/deliberate indiff by Johnston & Hayward); FSP-09-00286 (does not show exhaustion as to any defendant); FSP-09-00259 (does not exh claims against Vasquez); FSP-08-01215 (withdrawn at first level).
As clarified above, plaintiff proceeds in this action on claims of deliberate indifference to a serious medical condition in violation of the Eighth Amendment. Therefore, the only relevant grievances are those which speak to that issue. That is, it is irrelevant for purposes of determining exhaustion of administrative claims in this modified amended complaint whether or not plaintiff filed or exhausted appeals related to anything other than his claims implicating defendants with respect to how they allegedly dealt with his work-related back injury. Thus, claims of, inter alia, conspiracy, discrimination and retaliation are not before this court and grievances, exhausted or not, focused on irrelevant administrative appeals will not be addressed. For example, FSP-08-00369, an exhausted grievance which has as its subject plaintiff's protest against a possible out-of-state transfer has no bearing on the case at hand. MTD, Foston Dec., ¶ 8, Attachment 2. The court will address only those exhausted grievances that do bear on the gravamen of the amended complaint.
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 January 11, 2011, again by Order, filed on June 23, 2011, and yet again, as noted, in light of Woods v. Carey, --- F.3d ----, 2012 WL 2626912 (9th Cir. July 6, 2012), by Order, filed on July 12, 2012.
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, 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 (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 (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 Exhaustion Procedure
Although as of January 28, 2011, as defendants' Declarant D. Foston,
Chief of the CDCR Office of Appeals confirms, the procedures for
California prisoners to exhaust administrative remedies have been
REGS. tit.xv, §
3984.7), the procedure in place at the time relevant for this action
involved the following steps: 1) informal resolution, 2) formal
written appeal on a CDC 602 inmate appeal form, 3) second level appeal
to the institution head or designee, and 4) third level appeal to the
Director of the California Department of Corrections.*fn6
Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997)
(citing Cal. Code Regs. tit. xv, § 3084.5). A final decision from the
Director's level of review satisfies the exhaustion requirement. Id.
However, if the subject of the prisoner's complaint is a "staff complaint," such does not proceed through the ususal grievance procedures. The remedy for such a complaint is that CDCR initiate an investigation. An inmate can receive no other relief at that time regarding the staff complaint. Brown v. Valoff, 422 F.2d 926, 937-938 (9th Cir. 2005). If relief other than what is available for a staff complaint is sought, e.g., to be housed in protective custody, to be single celled, etc., then the regular three-level appeal process must be exhausted as for that relief. Id at 938. If on a staff complaint a request is ...