The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED ECF No. 16 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Findings and Recommendations
Plaintiff Luis Roberto Martinez ("Plaintiff') is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's First Amended Complaint for (1) First Amendment retaliation against Defendants Tami Arden, P. Pascua, R. Martinez and V. Ignacio; (2) cruel and unusual punishment in violation of the Eighth Amendment against Defendants Arden, Pascua, Martinez and Ignacio; (3) supervisory liability against Defendants P. Linihan and K. Englert; and (4) medical malpractice against Defendant Arden.
Pending before the Court is Defendants' motion to dismiss, filed February 13, 2012. ECF No. 16. Defendants contend that Plaintiff failed to exhaust administrative remedies as to: (1) First Amendment claims against Arden, Pascua, Martinez, and Ignacio; (2) Eighth Amendment claims 2 against Pascua, Martinez, and Ignacio; and (3) failure to supervise claim against Defendants Linihan 3 and Englert. Defendants also contend that Plaintiff fails to state a claim against Defendant Arden for 4 violation of his rights under the Eighth Amendment. 5
On March 6, 2012, Plaintiff filed his opposition. ECF No. 20.*fn1 On March 13, 2012, Defendants filed their reply. ECF No. 22. The matter is submitted pursuant to Local Rule 230(l). 7
II. Summary of First Amended Complaint
Plaintiff alleges the following. Plaintiff is a paraplegic with no function or control from the 9 chest down. Plaintiff is required to have his Foley catheter changed monthly. Plaintiff also has Harrington rods inserted in his thoracic spine. On May 4, 2009, Defendant Arden, a licensed vocational nurse, was performing the procedure. During the procedure, Defendant Arden was agitated while speaking to a correctional officer, and not paying attention to the procedure. On May 5, 2009, Plaintiff went man-down because of a urinary tract infection ("UTI"), and was hospitalized until May 11, 2009. Plaintiff informed Defendant Arden that he would file a complaint, to which Defendant Arden became angry, and placed the blame for the infection on Plaintiff.
On June 17, 2009, Defendant Arden did another procedure, and intentionally caused Plaintiff more harm as he then contracted another UTI. On June 24, 2009, Plaintiff finally received treatment. Defendants are aware that a UTI causes intense pain to Plaintiff's back because of the surgically implanted rods. Plaintiff filed a grievance*fn2 on June 30, 2009 concerning Defendant Arden's conduct. Defendants Linihan and Englert, supervising registered nurses, were aware of Plaintiff's issues, because Defendant Linihan interviewed Plaintiff on June 20, 2009, and Defendant Arden on July 1, 2009.
Defendant Pascua, licensed vocational nurse, caused Plaintiff pain and suffering for the procedure on August 19, 2009, which was not treated until September 4, 2009, and caused pain and suffering on January 18, 2010. Plaintiff had filed previous complaints against Defendant Pascua and contends that the pain he suffered was reprisals. 2
On March 5, 2010, Defendant R. Martinez, a registered nurse, caused more pain and 3 suffering by intentionally causing another UTI. Plaintiff was not treated until March 17, 2010. On 4 several occasions, Defendant Martinez intentionally delayed procedures when Plaintiff's catheter 5 clogged up, and he was later diagnosed with staph infection. Dr. Kokor ordered that Plaintiff receive 6 daily dressing changes, but because of reprisals, she missed over 12 days of dressing changes. 7
On April 16, 2010, Defendant V. Ignacio, registered nurse, deliberately caused more pain and 8 suffering. Before the procedure began, Plaintiff told Defendant Ignacio that Dr. Kokor told Plaintiff 9 to remind Defendant Ignacio to put the catheter in slow because something in Plaintiff's bladder triggers Plaintiff's blood pressure to go high. Defendant Ignacio instead shoved the catheter into the urethra fast. Plaintiff reminded her to stop going any further. Plaintiff was seen on April 20, 2010 and given antibiotics. All procedures were conducted in the facility C yard clinic.
Plaintiff contends that Defendants Arden, Ignacio, Martinez, and Pascua retaliated against Plaintiff for filing inmate grievances; Defendants Arden, Ignacio, Martinez, and Pascua violated Plaintiff's Eighth Amendment rights by acting with deliberate indifference to a serious medical need; Defendants Englert and Linihan violated Plaintiff's Eighth Amendment rights by acting with deliberate indifference by failing to supervise or train staff after becoming aware of subordinate violations; and Defendant Arden committed gross negligence, construed as medical malpractice, against Plaintiff on May 4, 2009.
III. Exhaustion of Administrative Remedies
Pursuant to the Prison Litigation Reform Act of 1995, "[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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, ...