FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On July 2, 2008, defendant Dunlap moved to dismiss this action, arguing that plaintiff failed to exhaust available administrative remedies prior to bringing suit. Plaintiff has filed an opposition to defendant's motion. Defendant has filed a reply. Plaintiff has also filed an unauthorized response to defendant's reply. See Local Rule 78-230(m).
Plaintiff is proceeding on an amended complaint against defendant John T. Dunlap. In his amended complaint, plaintiff alleges that the defendant was deliberately indifferent to his medical needs in violation of the Eighth Amendment. Specifically, plaintiff alleges that defendant Dunlap failed to provide him with adequate medical care for a bullet that was lodged in his arm. According to plaintiff, he repeatedly complained to defendant Dunlap about a burning pain in his elbow, but the defendant told him that the bullet was nothing to be concerned about because it was lodged between flesh and nerve. Plaintiff alleges that defendant Dunlap waited more than eighteen months before he requested a referral for plaintiff to see a neurosurgeon. Plaintiff notes that he eventually went to U.C. Davis to have the bullet removed. However, by this time, plaintiff alleges that he had lost all feeling and strength in his right hand and arm.
Counsel for defendant Dunlap argues that this action should be dismissed because plaintiff did not exhaust his inadequate medical care claim. Specifically, counsel argues that plaintiff filed two relevant grievances during the time defendant Dunlap was allegedly deliberately indifferent to plaintiff's medical needs. First, plaintiff filed Appeal 06-00705, requesting an MRI for spinal pain. Counsel argues that this appeal does not concern the allegations in plaintiff's complaint in this action, and in any event, plaintiff only pursued this appeal through the second level of review. Second, plaintiff filed Appeal 06-01444, concerning his decreasing ability to use his right arm as a result of lead poisoning and the bullet in his arm. Counsel argues that plaintiff withdrew this appeal on November 17, 2006. (Def.'s Mot. to Dismiss at 3-4; Casey Decl 1-2; Grannis Decl. 1-2.)
Counsel for defendant concludes that plaintiff failed to exhaust administrative remedies before bringing this suit. Accordingly, counsel concludes that the court should grant the instant motion to dismiss. (Def.'s Mot. to Dismiss at 4-5.)
II. Plaintiff's Opposition
Plaintiff has filed an opposition to defendant's motion to dismiss arguing that the motion is untimely and that the court should stay this action to allow him to exhaust his administrative remedies. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 1.) First, plaintiff argues that defendant failed to file the instant motion to dismiss within the time frame allowed by Local Rule 78-230(m). Plaintiff argues that defendant's failure to file a timely motion should be considered failure to prosecute, and the court should proceed straight to the merits of plaintiff's claims. (Id. at 5-6.) Second, plaintiff argues that defendant violated his rights under the Eighth Amendment and that fundamental fairness demands that the court stay this action while he exhausts administrative remedies. Plaintiff maintains that a jury should be allowed to determine the proper relief in this matter. (Id. at 6-8.) Plaintiff has attached to his opposition correspondence from prison officials that shows that he has recently filed administrative grievances regarding his medical needs. (Id., Ex. A.)
In reply, counsel for defendant argues that the instant motion to dismiss is timely.
The Waiver of Service of Summons defendant returned states that he had 60 days after May 6, 2008 to file a response to plaintiff's amended complaint. Defendant timely filed the instant motion to dismiss on July 2, 2008. As to the merits of the pending motion, counsel for defendant Dunlap argues that exhaustion must be complete before filing suit. Where, as here, plaintiff has not fully exhausted his claims before filing his suit, the court must dismiss his complaint without prejudice. (Def.'s Reply at 2.)
I. Legal Standards Applicable to a ...