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 June 30, 2008, defendant Duc moved to dismiss this action, arguing that plaintiff failed to exhaust available administrative remedies prior to bringing suit. Plaintiff has filed a timely opposition to defendant's motion. Defendant has not filed a reply.
Plaintiff is proceeding on his original complaint against defendant V. Duc.*fn1 In his complaint, plaintiff alleges that, on our about September 15, 2004, he fell from his upper bunk, felt a "snap" in the elbow area and immediately experienced pain. An MRI examination later revealed that plaintiff had suffered a "complete tear of the triceps tendon . . . with 4.22 cm of gap." (Compl. at 11.) Plaintiff alleges that he did not undergo reconstructive surgery on his elbow until January 5, 2006. (Id. at 18.)
Plaintiff also alleges that, on July 6, 2005, he suffered a slip and fall accident in his housing unit as a result of flooding in the area. Due to his existing triceps injury, plaintiff alleges that he was unable to break his fall, so he hit the concrete floor with the full force of his 370-pound frame. (Compl. at 12.) Spinal x-rays later revealed that plaintiff suffered a "possible acute compression fracture at L2, and degenerative disc disease at L4-5." (Id. at 13.)
Plaintiff alleges that defendant Duc examined and treated him for his triceps injury and his back injury on numerous occasions. (Compl. at 11-14 & 16-18.) However, plaintiff claims that defendant Duc failed to provide him with adequate medical care in violation of the Eighth Amendment. Specifically, plaintiff alleges that defendant Duc failed to request an MRI examination of his elbow, failed to follow a medical specialist's recommendation that he undergo immediate reconstructive surgery on his elbow, failed to follow an emergency room physician's recommendation that he undergo a next-day follow-up examination for his back injury and receive Vicodin for pain, failed to follow a CSP-Sac physician's recommendation that he undergo an MRI examination of his back, and failed to request a medical hold for post-surgical recovery after he underwent reconstructive surgery for his triceps injury. (Id. at 32-33.) Plaintiff requests declaratory relief, injunctive relief, and damages.*fn2 (Id. at 42-45.)
Counsel for defendant Duc argues that this action should be dismissed because plaintiff did not exhaust his inadequate medical care claim. Specifically, counsel argues that plaintiff filed four grievances (SAC-H-05-0138, SAC-H-05-1609, SAC-H-05-02188, and SACH-06-00207) regarding the claims at issue in this action but failed to pursue any of them through the director's level of review. (Def.'s Mot. to Dismiss at 3-8; DeLong Decl. & Attach. 1; Grannis Decl. & Attach. 1.) Counsel therefore concludes that the court should dismiss any claims against defendant Duc without prejudice for failure to exhaust administrative remedies.
II. Plaintiff's Opposition
Plaintiff has filed an opposition to defendant's motion to dismiss arguing that prison officials' responses to his appeals were invalid and that he exhausted all "available" administrative remedies. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 1-2.) First, plaintiff contends that prison officials' responses to his appeals are invalid because they violated numerous state regulations. For example, plaintiff argues that he received untimely responses to his appeals and that defendant Duc should not have responded to his appeals because he participated in the underlying misconduct. (Id. at 4-10.) Second, plaintiff argues that prison officials' responses to SAC-H-05-0138, SAC-H-05-1609, and SAC-H-06-00207 stated that he should pursue his requests and further treatment from his primary care physician at California Men's Colony, where he had been transferred. Plaintiff argues that pursuing these grievances at CSP-Sac through the director's level of review was no longer an available option to him and would have been "a futile abuse of the process." (Id. at 4-7 & 9-10.) Finally, plaintiff argues that the health care manager at CSP-Sac informed him that his staff misconduct complaint, SAC-H-05-02188, was "not sustained," and that health care staff would not take any further action against defendant Duc. (Id. at 8-9.) Plaintiff concludes that he has exhausted his administrative remedies with respect to his inadequate medical care claim and therefore the court should deny defendant's motion to dismiss.
I. Legal Standards Applicable to a Motion to Dismiss Pursuant to Non-Enumerated Rule 12(b)
By the Prison Litigation Reform Act of 1995 (PLRA), Congress amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The Supreme Court has ruled that exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). The Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. Id. at 741 n.6. Because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely ...