ORDER

KIMBERLY J. MUELLER, District Judge.

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On February 11, 2015, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. The findings and recommendations address two motions to dismiss, one filed by defendant Michael Sotak, ECF No. 62, and one filed by defendant Glayol Sahba, ECF No. 63. Defendant Sahba has filed objections to the recommended denial of her motion to dismiss. Neither defendant Sotak nor plaintiff has filed objections to the recommended grant of defendant Sotak's motion to dismiss with leave to amend the claim against defendant Sotak.

With respect to that part of the findings and recommendations to which no objections have been raised, the court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). Where objections have been raised the court's review is de novo. See 28 U.S.C. § 636(b)(1)(C) and Local Rule 304. The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully reviewed the file, for the reasons set forth below the court declines to adopt section III(A) of the findings and recommendations concerning plaintiff's claim against defendant Sotak. The findings and recommendations concerning defendant Sahba's motion to dismiss will be adopted as modified herein.

Defendant Sotak

Plaintiff's claim against defendant Sotak is "a due process privacy claim based on defendant Sotak's alleged unauthorized access to plaintiff's medical records." ECF No. 74 at 3 (citing ECF No. 24 at 1-2; ECF No. 31). Defendant Sotak seeks dismissal of this claim on three grounds: (1) defective service of process; (2) failure to state a claim under Federal Rule of Civil Procedure 12(b)(6); and (3) failure to exhaust administrative remedies prior to suit. The magistrate judge recommends this claim be dismissed with leave to amend, finding that plaintiff has "not alleged that there was no legitimate penological justification for Sotak's allegedly unauthorized access of plaintiff's medical files." ECF No. 74 at 7, 12. The magistrate judge also finds that plaintiff failed to exhaust administrative remedies for this claim. ECF No. 74 at 7-9.1 Finally, the magistrate judge concludes that defective service on defendant Sotak can be cured in the event plaintiff elects to file a third amended complaint. ECF No. 74 at 9.

This action is proceeding on plaintiff's second amended complaint (SAC), ECF No. 22. This complaint contains the following allegations relevant to plaintiff's claim against defendant Sotak. At all times relevant to this action plaintiff was confined at the Sacramento County Jail (hereafter Jail) and defendant Sotak was the Chief Medical Officer at the Jail. ECF No. 22 ¶¶ 3, 4. Plaintiff was transferred from the California Department of Corrections and Rehabilitation (CDCR) to the Jail in October 2009 for a court appearance. ECF No. 22 ¶ 9. Plaintiff was sent from CDCR with "his own personal wheelchair and medical record transfer sheets listing all his medical necessities." ECF No. 22 ¶ 9. On October 28, 2009, plaintiff's wheelchair was confiscated by officers at the Jail. ECF No. 22 ¶ 12. On October 29, 2009, plaintiff "was assaulted by an officer causing plaintiff to go to an outside hospital in which plaintiff was given another wheelchair at the hospital." ECF No. 22 ¶ 12. On October 29 and 30, 2009, defendants Sotak and Sahba "re-prescribed" a wheelchair for plaintiff. ECF No. 22 ¶ 12.

ECF No. 22 ¶¶ 31-33 (verbatim transcription).

The findings and recommendations set forth the legal principles that apply to plaintiff's due process claim for informational privacy. ECF No. 22 at 4-6. In particular, the United States Court of Appeals for the Ninth Circuit has held that "prisoners do not have a constitutionally protected expectation of privacy in prison treatment records when the state has a legitimate penological interest in access to them." Seaton v. Mayberg, 610 F.3d 530, 534 (9th Cir. 2010). The magistrate judge correctly finds that plaintiff has failed to allege facts suggesting an absence of legitimate penological justification for Sotak's act of obtaining plaintiff's medical records from Sutter Hospital without plaintiff's consent, requiring dismissal of the claim. ECF No. 22 at 7. He recommends, however, that the dismissal be with leave to amend. ECF No. 22 at 9, 13. This court disagrees that the defect in plaintiff's claim against defendant Sotak can be cured by amendment.

Defendant Sotak, the Chief Medical Officer at the Jail, sought plaintiff's consent to obtain records from Sutter General Hospital, the hospital to which plaintiff was transferred after the alleged assault by defendant Kinder. See ECF No. 1 ¶ 162; ECF No. 22 ¶ 33. Defendant Sotak argues he "had a legitimate penological interest in accessing plaintiff's medical records, namely, continuity of care." ECF No. 62-1 at 5. A significant part of the allegations in the second amended complaint center on the alleged deprivation of a prescribed wheelchair. See, e.g., ECF No. 22 ¶¶ 9-15. Plaintiff alleges that defendant Sotak was informed of the deprivation of the wheelchair and that defendant Sotak "wanted further confirmation" so he ordered that plaintiff "stay in the jail's infirmary until plaintiff's medical records arrived." ECF No. 22 ¶ 13. Plaintiff also alleges he was "given another wheelchair at the hospital." ECF No. 22 ¶ 12. These allegations are sufficient to give rise to an inference that defendant Sotak had a legitimate penological purpose in requesting plaintiff's consent for the medical records: to confirm the necessity for a wheelchair.3 Plaintiff could not now cure the defect in this by pleading an absence of legitimate penological reasons for seeking plaintiff's medical records. For these reasons, defendant Sotak's motion to dismiss will be granted without leave to amend.

Defendant Sahba

With respect to defendant Sahba's motion, the magistrate judge finds that the second amended complaint states a cognizable Eighth Amendment claim against Sahba and that it is not clear from the face of the second amended complaint that plaintiff failed to exhaust administrative remedies with respect to that claim. ECF No. 22 at 10-13. Defendant Sahba objects that (1) none of the grievances cited by plaintiff and attached to the second amended complaint makes any reference to defendant Sahba; and (2) all pre-date the interaction that is the basis for plaintiff's Eighth Amendment claim against defendant Sahba. Defendant Sahba has presented no evidence of the requirements of the Sacramento County Jail's inmate grievance procedure.4 Administrative "exhaustion under §1997e(a) is an affirmative defense that must be pled and proved by a defendant." Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir.) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)), cert. denied sub nom. Scott v. Albino, ___ U.S. ___, 135 S.Ct. 403 (2014). Defendant Sahba chose to predicate the motion to dismiss solely on the allegations of the second amended complaint, rather than bringing a motion for summary judgment. Cf. Albino, 747 F.3d at 1169 ("[i]n a typical PLRA case, a defendant will have to present probative evidence — in the words of Jones, to `plead and prove' — that the prisoner has failed to exhaust available administrative remedies under § 1997(e)(a)."). In so doing, defendant Sahba failed to meet her burden of proving that plaintiff failed to exhaust administrative remedies for his claim against her.5 Defendant Sahba's motion to dismiss will be denied.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed February 11, 2015, are adopted in part;

2. Defendant Sotak's motion to dismiss (ECF No. 62) is granted without leave to amend; and

3. Defendant Sahba's motion to dismiss (ECF No. 63) is denied.