FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights complaint under 42 U.S.C. § 1983. Plaintiff asserts that his Constitutional rights were violated during his confinement when defendants refused to provide him effective pain treatment through medication and refused to perform facial surgery to combat plaintiff's hemangiomas.*fn1
The defendants, Christopher Smith and Scott Heatley, were ordered to respond to the complaint. On August 10, 2012, the defendants filed a motion to dismiss. In their motion, defendants admit that plaintiff exhausted his administrative remedies concerning the discontinuance of his pain medication. However, they argue that plaintiff's claim seeking surgery to combat his hemangiomas is unexhausted and should therefore be dismissed.
Defendants Christopher Smith and Scott Heatley are employed as physicians at the Mule Creek State Prison in Ione, California. Plaintiff has suffered from recurrent hemangiomas of the face and neck since he was a child. While incarcerated in Mule Creek State Prison, defendants disapproved of plaintiff's surgical requests as well as discontinued his medications of Tramadol and Gabapentin that plaintiff had been taking to manage his pain associated with this condition.
Plaintiff states that he filed an inmate health care appeal in July 2011 which requested that Tramadol and Gabapentin be reinstated and for treatment for his tumor and cyst. He states that his second level appeal was denied on October 5, 2011. Plaintiff's request for Tramadol was denied but his request to be prescribed Gabapentin was partially granted and he was started on a prescription for Gabapentin, 300 mg, three times a day. Plaintiff's third level appeal was denied according to the allegations of the complaint.
Plaintiff seeks the following relief: (1) injunctive relief in the form of proper medical treatment including a temporary restraining order restraining defendants from withholding Tramadol 50 mg three times a day and Gabapentin and ordering the defendants to perform surgery for his hemangiomas. Plaintiff also requests general and punitive damages, costs and other relief as the court may deem just and proper.
II. DEFENDANTS' MOTION TO DISMISS
Defendants move to dismiss plaintiff's claim that the defendants violated his Constitutional rights by rejecting surgery as a treatment option pursuant to non-enumerated Rule 12(b). They assert that plaintiff failed to exhaust his administrative remedies with respect to this claim prior to filing his complaint. Defendants contend that plaintiff only submitted one health care related inmate grievance to the third level of review (Office of Third Appeals-Health Care ("OTLA-HC")), MCSP-16-11-11311. Defendants argue that this is plaintiff's only exhausted grievance. They state that plaintiff only complained about the discontinuance of his pain medication in that inmate grievance. Furthermore, they state that therein plaintiff only requested to have his medications reinstated and for the medical staff to be properly trained. According to defendants, that inmate grievance does not allege that the defendants were deliberately indifferent to his medical needs because they denied surgical requests and recommendations. They also note that plaintiff did not request surgery in that grievance.
B. Plaintiff's Opposition
Plaintiff argues that his grievance was about relieving pain and therefore his claim for disapproval of surgery is exhausted. Furthermore, he asserts that he attached medical records to his grievance which showed that he periodically received a procedure called "ethanol sclerotherapy" that reduces the tumors sizes and significantly reduces the pain caused by them. According to plaintiff, these facts show that he properly exhausted this claim.
In reply, defendants reiterate that plaintiff did not alert the prison staff to the nature of the alleged wrong, namely the refusal to approve surgery in grievance MCSP-16-11-11311. With respect to plaintiff's contention that he attached medical records to that appeal, defendants assert that plaintiff did not do so. Instead, defendants assert, the medical records that plaintiff relies on were in fact attached to his inmate grievance IA-16-2011-11188. To the extent that plaintiff relies on that grievance to argue that the claim is exhausted, defendants assert plaintiff did not appeal it to the third-level after it was rejected at the first-level of review. Finally, defendants argue that even if plaintiff had attached his medical records to inmate grievance MCSP-16-11-11311, those records were insufficient to alert prison officials to the nature of the wrong (disapproval of surgery) for which plaintiff was seeking redress. The defendants note that plaintiff attached two medical records to his opposition to the motion to dismiss. Defendants state as follows with respect to these medical records:
One of the partial records appears to contain a medical professional's impression that a surgical procedure called ethanolschlerotherapy likely reduced the size of Plaintiff's hemangiomas on his cheek, lip, and chin in 2009. These records merely show that Plaintiff had facial hemangiomas and that he may have had a procedure in 2009 to reduce their size. Even if these records were submitted with inmate appeal MCSP-16-11-11311, they merely provided a limited amount of information concerning Plaintiff's hemangiomas. That information does not give notice of ...