The opinion of the court was delivered by: BREWSTER
On August 5, 1997, Defendants Ratelle, Crews, Armstrong, and Hunt, the four defendants in this action, filed a motion to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff did not file an opposition brief to this motion. Upon due consideration of the moving papers and for the reasons stated below, the Court hereby GRANTS Defendants' motion to dismiss Plaintiff's complaint. Plaintiff may amend his complaint by addressing the deficiencies discussed in this order. Plaintiff must file a copy of his first amended complaint with the Clerk of Court and serve copies of the first amended complaint upon all parties to this action within sixty days from the date of this order.
All Defendants have moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) on the following grounds: (1) Plaintiff has failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a); (2) the allegations against Defendants fail to meet the heightened pleading standard required in § 1983 actions by Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991); and (3) Defendants are immune to suit pursuant to the Eleventh Amendment. Additionally, Defendants Ratelle and Crews argue that Plaintiff is impermissibly attempting to hold them liable under a theory of respondeat superior, and Defendants Armstrong and Hunt assert that Plaintiff's complaint fails to state a claim for violation of a constitutional right.
A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. This court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court need not, however, accept every allegation in the complaint as true; rather, the court "will examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted).
B. Plaintiff has alleged exhaustion of his administrative remedies as required by the Prison Litigation Reform Act of 1995.
All Defendants argue that Plaintiff's complaint must be dismissed on the grounds that he has not exhausted available administrative remedies as is now required by the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, Title VIII, §§ 801-10, 110 Stat. 1321 (1996) and 42 U.S.C. § 1997e(a). Defendants claim that the PLRA requires Plaintiff to exhaust remedies prescribed by the California Tort Claims Act by presenting his claims to the State Board of Control before filing a lawsuit under 42 U.S.C. § 1983. See Cal. Govt. Code §§ 905.2, 911.2 and 945.4.
1. Plaintiff has exhausted his remedies within the prison grievance system
Defendants do not allege that Plaintiff has not exhausted his administrative remedies within the prison grievance system. The administrative appeal system for inmates in the California prison system is described in Title 15 of the California Code of Regulations. "Any inmate or parolee under the [California Department of Correction's] jurisdiction may appeal any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal. Code Regs tit. 15, § 3084.1(a). In order to exhaust administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, (4) third level appeal to the director of the California Department of Corrections.
Plaintiff's complaint alleges that after attempting to resolve his situation informally, he filed his first appeal within the prison grievance system on November 25, 1996, about ten months after his injury. On December 23, 1996, he received a response from the prison staff that his surgery was approved, but that because of security concerns, he could not be told the date of the surgery. On March 31, 1997, Plaintiff filed a request for a second-level review because three months had passed with no further word from prison officials about the surgery. Although requests for second-level reviews must be responded to within ten working days, Plaintiff alleges that he never received a response. Three months after submitting his request for a second-level review, Plaintiff requested a Director's Level Review on June 6, 1997, to which he has also never received a response. Because Plaintiff has attempted to appeal the prison officials' inaction with regard to his treatment to every level of the prison grievance system, it does not appear (and the moving party has not attempted to show) that Plaintiff has failed to exhaust his administrative remedies within the prison system.
2. Plaintiff is not required to comply with the California Tort Claims Act in order to exhaust his ...