ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b) & 12(b)(6)
IRMA E. GONZALEZ, District Judge.
I. Procedural History
Plaintiff, a state prisoner currently incarcerated at California State Prison-Los Angeles County ("CSP-LAC"), in Lancaster, California, is proceeding pro se and in forma pauperis with this civil action filed pursuant to 42 U.S.C. § 1983. Plaintiff alleges his rights to adequate medical care, due process, and to be free of cruel and unusual punishment were violated while he was an inmate at Centinela State Prison in 2011. See Compl. [ECF No. 1] at 1-6.
On November 30, 2012, Defendants filed a Motion to Dismiss for failing to exhaust his administrative remedies for failing to state a claim pursuant to FED.R.CIV.P. 12(b) & 12(b)(6). [ECF No. 57.] Instead of filing an Opposition, Plaintiff filed two Motions to Stay the proceedings and Motions for Extension of Time to file an Opposition. The Motions toStay were denied but Plaintiff was granted an extension of time on two occasions to file his Opposition. [ECF Nos. 19, 25.] Those dates have since passed and Plaintiff has failed to file an Opposition.
The Court has determined that Defendants' Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Karen S. Crawford is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).
II. Plaintiff's Factual Allegations
On January 20, 2011, Plaintiff was housed at Centinela State Prison ("CEN"). ( See Compl. at 4.) On that date, Plaintiff became involved in physical altercation with another inmate. ( Id. ) Plaintiff contends that CEN prison officials "negligently" used "O.C. pepper spray" to stop the altercation between Plaintiff and the other inmate. ( Id. ) Plaintiff alleges that he was sprayed with pepper spray in his "mouth, face and overall body, " and he was shot in the "back upper left shoulder area with a 40 mm gun" by an officer in the control tower. ( Id. ) Plaintiff claims as soon as he was shot he "immediately dropped to the ground and assumed the prone position." ( Id. ) Even though Plaintiff was "immobilized" from the first shot, "choking, as well as unable to see from the pepper spray, " he was shot again in his forearm and the right side of his head. ( Id. )
Plaintiff was charged with a rules violation and placed in Administrative Segregation ("Ad-Seg") following this incident. ( Id. ) Plaintiff alleges that prison staff conspired to "cover up" the incident in part by failing to "assess and evaluate the severity of [Plaintiff's] head wounds/injury." ( Id. ) Plaintiff was eventually taken to the Correctional Treatment Center ("CTC") where he was examined, his wounds were cleaned and he was given bandages for his head wound. ( Id. at 5.) Plaintiff was not given "any x-rays, c.t. scan or any type of intensive care, examinations etc." ( Id. ) Plaintiff alleges he told the CTC staff that he was suffering from severe headaches, dizziness, blurred vision and a hurt back. ( Id. ) It was later determined that Plaintiff had a "large laceration, a fractured skull, disfigurement and impaired vision." ( Id. at 4.)
Five days after the incident, Plaintiff was sent to USCD, an "outside" hospital. ( Id. at 5.) Plaintiff alleges they sent him to the outside hospital because he continued to have the symptoms that he complained of on the day he was examined at the CTC. ( Id. ) Plaintiff claims the doctors at UCSD informed him that he did have a fractured skull as a result of the gunshot and they found the prison medical staff "had indeed been negligent with the inadequate medical care." ( Id. ) After two days at UCSD, Plaintiff was returned to the prison where he claims he still has not received adequate medical attention. ( Id. )
Plaintiff alleges that he told prison medical doctors Defendants Ko, Sangha and Zamora that he continues to "suffer severe headaches, my vision gets blurry, I get dizzy." ( Id. ) Plaintiff claims that when he was interviewed by Defendant Ko, he told him of his hurt back, numb feet, and "persistent headache." ( Id. at 6.) Plaintiff alleges Defendant Ko refused to allow x-rays or prescribe stronger pain medication and instead would only provide Plaintiff with a cane. ( Id. ) Plaintiff appealed to Defendant Sangha who also denied his requests. ( Id. ) On June 24, 2011, Plaintiff went "man down" in his cell "due to severe back pain." ( Id. ) However, Defendant Ko continued to refuse to provide treatment to Plaintiff. ( Id. ) Instead, Defendant Ko told Plaintiff "there was nothing wrong" with him and threatened to issue Plaintiff a rules violation report.
III. DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(b)
Defendants move to dismiss the excessive force claims in Plaintiff's Complaint on the grounds that they should be dismissed for failing to exhaust available administrative remedies pursuant to FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a).
A. Standard of Review per FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a)
Defendants claims Plaintiff failed to exhaust available administrative remedies as to the claims against them pursuant to 42 U.S.C. § 1997e(a) before bringing this suit, therefore, Defendants seek dismissal under the "non-enumerated" provisions of FED.R.CIV.P. 12(b). The Ninth Circuit has held that "failure to exhaust nonjudicial remedies is a matter of abatement" not going to the merits of the case and is properly raised pursuant to a motion to dismiss, including a non-enumerated motion under FED.R.CIV.P. 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) It is also well established that non-exhaustion of administrative remedies as set forth in 42 U.S.C. § 1997e(a) is an affirmative defense which defendant prison officials have the burden of raising and proving. See Jones v. Bock, 594 U.S. 199, 216 (2007); Wyatt, 315 F.3d at 1119. ...