United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel. Plaintiff
filed this civil rights complaint, pursuant to 42 U.S.C.
§ 1983. Plaintiff alleges that defendants Dr. Crosson
and Dr. Pai, erroneously named as Dr. Pie, were deliberately
indifferent to his serious medical needs, in violation of the
Eighth Amendment. On February 12, 2013, pursuant to a
referral by Dr. Pai, a physician and surgeon employed at the
California Medical Facility, plaintiff was seen by Dr.
Crosson, an ophthalmologist in Fairfield, California, in
order to be evaluated and undergo a laser procedure in both
eyes to relieve pressure. (ECF No. 24.) Both defendants move
to dismiss alleging that plaintiff fails to state a
cognizable civil rights claim, including a claim that it
appears from the face of the pleading that plaintiff failed
to exhaust his administrative remedies prior to filing the
instant action. As set forth below, the undersigned
recommends that defendants’ motions to dismiss be
Rule 12(b)(6) Standards
12(b)(6) of the Federal Rules of Civil Procedures provides
for motions to dismiss for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). In considering a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), the court must
accept as true the allegations of the complaint in question,
Erickson v. Pardus, 551 U.S. 89 (2007), and construe
the pleading in the light most favorable to the plaintiff.
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969);
Meek v. County of Riverside, 183 F.3d 962, 965 (9th
Cir. 1999). Still, to survive dismissal for failure to state
a claim, a pro se complaint must contain more than
“naked assertions, ” “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Furthermore, a claim upon which the court can grant
relief must have facial plausibility. Twombly, 550
U.S. at 570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. Attachments to a complaint are considered to be part
of the complaint for purposes of a motion to dismiss for
failure to state a claim. Hal Roach Studios v. Richard
Reiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.
motion to dismiss for failure to state a claim should not be
granted unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claims which would
entitle him to relief. Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984). In general, pro se
pleadings are held to a less stringent standard than those
drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520 (1972). The court has an obligation to construe such
pleadings liberally. Bretz v. Kelman, 773 F.2d 1026,
1027 n.1 (9th Cir. 1985) (en banc). However, the
court’s liberal interpretation of a pro se complaint
may not supply essential elements of the claim that were not
pled. Ivey v. Board of Regents of Univ. of Alaska,
673 F.2d 266, 268 (9th Cir. 1982). In ruling on a motion to
dismiss pursuant to Rule 12(b)(6), the court “may
generally consider only allegations contained in the
pleadings, exhibits attached to the complaint, and matters
properly subject to judicial notice.” Outdoor Media
Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th
Cir. 2007) (citation and quotation marks omitted).
Alleged Failure to Exhaust
Prison Litigation Reform Act of 1995 (“PLRA”)
amended 42 U.S.C. § 1997e to provide 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). Exhaustion
in prisoner cases covered by § 1997e(a) is mandatory.
Porter v. Nussle, 534 U.S. 516, 524 (2002).
Exhaustion is a prerequisite for all prisoner suits regarding
conditions of confinement, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong. Porter, 534
U.S. at 532.
exhaustion of available remedies is mandatory. Booth v.
Churner, 532 U.S. 731, 741 (2001). “Proper
exhaustion demands compliance with an agency’s
deadlines and other critical procedural rules.”
Woodford v. Ngo, 548 U.S. 81, 95-96 (2006). For a
remedy to be available, there must be the “possibility
of some relief. . . .” Booth, 532 U.S. at 738.
Relying on Booth, the Ninth Circuit has held:
[A] prisoner need not press on to exhaust further levels of
review once he has received all “available”
remedies at an intermediate level of review or has been
reliably informed by an administrator that no remedies are
Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
to exhaust under the PLRA is “an affirmative defense
the defendant must plead and prove.” Jones v.
Bock, 549 U.S. 199, 204, 216 (2007). To carry this
a defendant must demonstrate that pertinent relief remained
available, whether at unexhausted levels of the grievance
process or through awaiting the results of the relief already
granted as a result of that process. Relevant evidence in so
demonstrating would include statutes, regulations, and other
official directives that explain the scope of the
administrative review process; documentary or testimonial
evidence from prison officials who administer the review
process; and information provided to the prisoner concerning
the operation of the grievance procedure in this case. . . .
With regard to the latter category of evidence, ...