The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST, AND DENYING PLAINTIFF'S REQUEST FOR SANCTIONS (ECF No. 41, 47, 50, 51) ORDER STRIKING COUNTER MOTION TO DEFENDANT'S REPLY (ECF No. 52) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations on Defendant's Motion to Dismiss
Plaintiff Paul Montanez ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on October 15, 2010. (ECF No. 1.) This action is proceeding on the second amended complaint, filed January 30, 2012, against Defendant Grimm for deliberate indifference in violation of the Eighth Amendment and medical malpractice under state law. (ECF No. 34.) Defendant filed a motion to dismiss on June 11, 2012. (EDF No. 41.) Plaintiff filed an opposition to the motion to dismiss on August 6, 2012, and Defendant filed a reply on August 20, 2012.*fn1 (ECF Nos. 47, 50.) On September 4, 2012, Plaintiff filed a motion for sanctions and a counter motion to Defendant's reply. (ECF Nos. 51, 52.)
Plaintiff filed a surreply entitled "Counter-Motion to Defendant's Reply to Plaintiff's Opposition to Motion to Dismiss." (ECF No. 52.) The Local Rules provide for a motion, an opposition, and a reply. Neither the Local Rules nor the Federal Rules provide the right to file a surreply, and the Court neither requested one nor granted a request on the behalf of Plaintiff to file one. Accordingly, Plaintiff's surreply, filed September 4, 2012, shall be stricken from the record.
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). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006). All available remedies must be exhausted, not just those remedies that meet federal standards, Woodford, 548 U.S. at 84, nor must they be "plain, speedy, and effective," Booth v. Churner, 532 U.S. 731, 739 (2001). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Id at 741; see Woodford, 548 U.S. at 93.
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084, et seq. "Any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a) (West 2009).*fn2 At the time of the incident alleged in this action, four levels of appeal were involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Cal. Code Regs. tit 15, § 3084.5.
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense which defendants have the burden of raising and proving the absence of exhaustion. Lira v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). "In deciding a motion to dismiss for failure to exhaust, a court may look beyond the pleadings and decide disputed issues of fact." Sapp v. Kimbrell, 623 F.3d. 813, 821 (9th Cir. 2010) (quoting Wyatt, 315 F.3d at 1119-20). If the court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice, even where there has been exhaustion while the suit is pending. Lira, 427 F.3d at 1171.
B. Plaintiff's Allegations in Second Amended Complaint
On November 13, 2008, a pin and screw were placed in Plaintiff's right
wrist to repair a fractured schaphoid. (Sec. Am. Compl. 13,*fn3
ECF No. 33.) Plaintiff saw Defendant Grimm around February
10, 2009, complaining that the pain medication, acetaminophen, he had
been prescribed was not adequate to treat the excruciating pain in his
right wrist. Defendant Grimm ignored Plaintiff's complaints and
ordered acetaminophen and ibuprofen which did not relieve Plaintiff's
pain. Plaintiff explained to Defendant Grimm that the pins felt as if
they were going to rip through his skin and the area was swollen and
extremely painful to touch. Defendant Grimm ...