The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner incarcerated at Mule Creek State Prison ("MCSP"), under the authority of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff proceeds without counsel, and in forma pauperis, in this civil rights action filed pursuant to 42 U.S.C. § 1983. The court previously dismissed two of the named defendants, based on the finding that plaintiff's complaint fails to state any potentially cognizable claims against them. (See Dkt. Nos. 16, 20.) The action now proceeds against defendants Dr. W. Hashimoto ("Hashimoto") and Dr. Christopher Smith ("Smith"). Currently before the court is defendants' motion to dismiss. (Dkt. No. 22.) Plaintiff filed an opposition (Dkt. No. 30); defendants filed a reply (Dkt. No. 33). For the following reasons, this court recommends that defendants' motion be granted in part, and denied in part.
This action proceeds on plaintiff's First Amended Complaint ("complaint"), filed on July 14, 2011. (Dkt. No. 14 ["compl."].) Attached thereto are, inter alia, copies of plaintiff's pertinent administrative grievances. The court sets forth the relevant allegations of the complaint.
Plaintiff's claims against Hashimoto and Smith are premised on his allegation that he received inadequate medical attention in the wake of a vehicle accident he was involved in on October 2, 2008. More specifically, plaintiff alleges that he was a passenger in restraints in a medical transport van en route to an outside medical facility when the van was rear-ended at an intersection by another medical transport van. Plaintiff further alleges that, as a result of this accident, he "sustained neck, back, shoulder injury pain and . . . frequent headaches [and] dizzy spells." (Compl. at 3.) In connection with this accident, plaintiff claims that he sought medical treatment from medical staff at MCSP, but that the treatment he received "failed to remedy" his alleged ailments and that the staff continued to "downplay or disregard" his complaints. (Id.) Hashimoto was one of plaintiff's treating doctors and was the doctor who interviewed plaintiff in connection with the First Level Review of plaintiff's pertinent administrative grievance. Smith was the medical director at MCSP and had signed the denial of plaintiff's request for medical authorization to receive an MRI of his right shoulder. Based on a liberal construction of the amended complaint and supporting exhibits, plaintiff contends that both defendants were deliberately indifferent to plaintiff's serious medical needs, in violation of the Eighth Amendment, and acted negligently in their medical care of plaintiff, in violation of California state tort law. Plaintiff seeks proper medical treatment and damages against both defendants.
Defendants raise several arguments in support of their motion to dismiss. The court address the merits of defendants' motion in the following sequence: (1) whether plaintiff failed to properly exhaust his administrative remedies with respect to Smith; (2) whether plaintiff's state law negligence claim for monetary damages complied with the California Tort Claims Act; (3) whether plaintiff properly alleges a claim of "deliberate indifference" against defendants under the Eight Amendment; and (4) whether defendants are entitled to qualified immunity with respect to plaintiff's Eight Amendment claim.
A. Whether Plaintiff Properly Exhausted His Administrative Remedies*fn1
The Prison Litigation Reform Act ("PLRA") 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." 42 U.S.C. § 1997e(a). Pursuant to this rule, prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion also requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006).
The PLRA requires that administrative remedies be exhausted prior to filing suit. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). However, the exhaustion requirement is not jurisdictional, but an affirmative defense that may be raised by a defendant in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). See Jones v. Bock, 549 U.S. 199, 216 (2007) ("inmates are not required to specially plead or demonstrate exhaustion in their complaints"); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119.
"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust -- a procedure closely analogous to summary judgment --then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120 n.14. When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) ("mixed" complaints may proceed on exhausted claims). Thus, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
"The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Jones, supra, 549 U.S. at 218. In California, prisoners are required to lodge their administrative complaint on a CDC Form 602, which requires only that the prisoner "describe the problem and action requested." Cal. Code Regs. tit. 15, § 3084.2(a). In Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009), the Ninth Circuit Court of Appeals adopted the standard enunciated by the Seventh Circuit, which provides that "when a prison's grievance procedures are silent or incomplete as to factual specificity, 'a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.'" Griffin, 557 F.3d at 1120 (reviewing Arizona procedures), quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Thus, in California, "[a] grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Griffin, 557 F.3d at 1120; accord, Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010).
"[E]xhaustion is not per se inadequate simply because an individual later sued was not named in the grievances." Jones, 549 U.S. at 219. It is nonetheless appropriate to require that a prisoner demonstrate, through the administrative grievance process and consistent with the PLRA, that he has standing to pursue his claims against a particular defendant. "[A]t an irreducible minimum, Art[icle] III [of the United States Constitution] requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.' " Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979).
During the relevant period of time, plaintiff exhausted a single administrative grievance and submitted three others. Two of the submitted grievances were screened out at the informal level. A third grievance was partially granted at the informal level and plaintiff failed to pursue it any further. These grievances have been identified, and duplicated for the court, by L. D. Zamora, the Chief of the Office of the Third Level Appeals for California Correctional Health Services, and D. Miner, the acting health care appeals coordinator at MCSP. See Zamora Decl. (Dkt. No. 22-3); Miner Decl. (Dkt. No. 22-2). The court's review of all of these grievances, only one of which reached the Director's Level Review, demonstrates that plaintiff properly exhausted his claims against Hashimoto, but failed to do so with respect to his claims against Smith.
In Log No. MCSP-16-09-12270, initially submitted on August 2, 2009, plaintiff alleged that he had submitted a request to receive care for his alleged medical issues, which had been screened out on June 23, 2009, and was "resubmitted to and forwarded to Health Care Appeals for processing." (Dkt. No. 14 at 8.) Plaintiff further alleged that he had "waited a full 30 days to hear back from [Health Care Appeals] in hopes of receiving proper health care to no avail." (Id.) He also alleged that he filled out a "sick slip," but that "visits to the doctor have rendered no helpful solutions." (Id.) In this grievance, plaintiff requested to "receive help for my back so as to keep me from existing in a constant state of pain," and to "receive an effective adequate pain management [sic] program" to alleviate his alleged symptoms. (Id.)
This grievance was denied at the First Level Review, by Hashimoto, on the grounds that "medical car [sic] has been appropriate." (Id. at 12.) On October 13, 2009, the grievance was denied at the Second Level Review on similar grounds, with the reviewer noting that plaintiff's medical treatment at MCSP "has been appropriate and timely." (Id. at 16-17.) At the Director's Level Review on January 25, 2010, plaintiff's grievance was denied for the same reasons stated in the Second Level Review. (Dkt. No. 1 at 26-28.) Therefore, the claim was exhausted pursuant to the Director's Level Decision.
Plaintiff also submitted two other appeals, on June 24, 2009, and November 4, 2009, respectively, which were denied and screened out at the informal level on June 25, 2009, and November 4, 2009, respectively. (Dkt. No. 22-2 at ¶ 10.) Plaintiff submitted an additional appeal on October 24, 2008, Log No. MCSP-HC-11029441, complaining about the medical care he had received. (Id. ¶¶ 11-12.) This grievance was partially ...