The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. The complaint alleges that defendants, health care providers at Mule Creek State Prison (MCSP), were deliberately indifferent to plaintiff's medical condition. Before the court is defendants' fully-briefed motion to dismiss. See ECF No. 29 (motion); ECF No. 33 (opposition); ECF No. 36 (reply); ECF No. 40 (defendant Galloway's notice of joinder in motion).
Allegations of the Complaint
This case proceeds on the First Amended Complaint, ECF No. 8, which alleges as follows. Plaintiff suffers from levoconvex idiopathic scoliosis, a spinal deformity. This condition causes plaintiff chronic pain that is almost unbearable at times. Over a fourteen year period prior to the events at issue here, plaintiff had received treatment and medication necessary for pain management.
In October of 2010, plaintiff submitted an inmate request for medical treatment to defendant Kettelhake, a registered nurse. Kettelhake did not evaluate or speak to plaintiff, or take any action to alleviate his suffering, but sent plaintiff notice that he would be seen in 30 days. In November of 2010 plaintiff was seen by defendant Dr. Soltanian-Zadeh, who did not listen to plaintiff's complaints and refused to provide any pain management. Dr. SoltanianZadeh opined without medical evidence that plaintiff's "whole problem is from improper stretching." He refused to prescribe the necessary medications that had been provided by other doctors in the past. After submitting a grievance regarding his unmet medical needs, plaintiff was seen by defendant Dr. Tseng. Dr. Tseng took no action to relieve plaintiff's suffering. Although Tseng was aware of plaintiff's condition and had previously prescribed pain medications for him, on this occasion Tseng failed to provide treatment.
Plaintiff's complaints were "whitewashed" in the course of the administrative grievance process regarding the denial of treatment. Dr. Heffner, the CEO of Health Care Services for MCSP, failed to remedy the denial of care on appeal.*fn1 Defendants Smith, Heatley and Galloway, all doctors, and defendant Todd, a physician assistant, comprise MCSP's Pain Management Committee and Medical Authorization Review Committee. These committees were responsible for reviewing plaintiff's case, and failed to order a constitutionally adequate level of care.
Defendants seek dismissal on three distinct grounds: failure to exhaust administrative remedies, failure to state a claim upon which relief can be granted, and qualified immunity. On July 13, 2012, plaintiff was advised of the requirements for opposing a motion to dismiss for failure to exhaust, see Wyatt v. Terhune, 315 F.3d 1108 (2003) and Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), and provided twenty-one days to supplement his opposition with additional evidence if he chose. ECF No. 42. Plaintiff submitted additional evidence on August 3, 2012 (ECF. No. 44), after which defendants filed both a motion to strike the additional evidence in part (ECF No. 45), as well as a supplement to their own reply to the motion (ECF No. 46).
Defendants are correct that plaintiff was granted leave to submit additional evidence regarding the exhaustion issue only, not leave to file supplemental briefing or documentation related to application of Rule 12(b)(6). Accordingly, plaintiff's additional argument constitutes an unauthorized sur-reply to the extent it supplements his opposition to dismissal under Rule 12(b)(6). Plaintiff's medical records (ECF No. 44 at 4-7), which post-date his administrative exhaustion process, are not properly before the court. Defendants' motion to strike evidence is granted as to the medical records. The undersigned will consider only that portion of ECF No. 44 that goes to the issue of administrative exhaustion.
Defendant's Assertion of the Non-Exhaustion Defense The Exhaustion Requirement 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." Regardless of the relief sought, whether injunctive relief or money damages, inmates must exhaust administrative remedies. Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999); Booth v. Churner, 532 U.S. 731 (2001). Administrative remedies must be exhausted before the complaint is filed. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002), but see Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010) (PLRA exhaustion requirement satisfied with respect to new claims within an amended or supplemental complaint so long as administrative remedies are exhausted prior to the filing of the amended or supplemental complaint).
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 (2006). An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion requirement. Id. at 84. When an inmate's administrative grievance is improperly rejected on procedural grounds, however, exhaustion may be excused as "effectively unavailable." Sapp v. Kimbrell, 623 F. 3d 813, 823 (9th Cir. 2010).
Exhaustion may be excused where administrative remedies are effectively unavailable, see Nunez v. Duncan, 591 F.3d 1217, 1224-26 (9th Cir. 2010), or where exhaustion would be futile, see Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012).
Although subsequently amended (see 15 Cal. Code Regs. § 3084.7), the procedures in place at the time relevant for this action required California prisoners to take the following steps in order to exhaust their administrative remedies: (1) attempted 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.*fn2 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. at 1237-38. Since 2008, medical appeals have been processed at the third level by the Office of Third Level Appeals for the California Correctional Health Care Services.
Standards Governing the Motion
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.), cert. denied, 540 U.S. 810 (2003). The parties may go outside the pleadings, submitting affidavits or declarations under penalty of perjury, and plaintiff must be provided with notice of his opportunity to develop a record. Id. at 1120 n.14. The court may decide disputed issues of fact. If the court determines that plaintiff has failed to exhaust, dismissal without prejudice is the appropriate remedy. Id. at 1120.
The Evidentiary Record Regarding Exhaustion Defendants have produced evidence that plaintiff submitted two and only two administrative appeals between October 2010, when the alleged Eighth Amendment violation began, and October 14, 2011, when the First Amended Complaint was filed. Only the first of these was reviewed at the Third Level before the First Amended Complaint was filed. See ECF No. 29-2 (Decls. Of Foston, Zamora (with attachments), Elorza, and McLean (with attachments)).*fn3
First Grievance: Log No. MCSP-16-10-12928
On November 22, 2010, plaintiff submitted an inmate health care appeal form (602-HC) alleging that he had been treated with indifference by Dr. Soltanian-Zadeh on November 16, 2010. The grievance specified that plaintiff was seen by Dr. Soltanian-Zadeh twenty-six days after he submitted a request to be seen for a back spasm. Dr. Soltanian-Zadeh failed to review plaintiff's medical history and "arbitrarily denied [plaintiff's] renewal request for methocarbomal." He told plaintiff that his "back problem" was caused by "improper stretching exercises." Dr. Soltanian-Zadeh disregarded plaintiff's scoliosis and failed to address his need for palliative care. Informal review was bypassed. Ex. A to Zamora Decl.; Ex. A to McLean Decl. The appeal was denied at the first level by Dr. Tseng on December 17, 2010. Ex. B to McLean Decl. Plaintiff submitted his appeal for second level review on December 26, 2010. He stated that he was dissatisfied with Dr. Tseng's first level ...