ORDER AND 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. Counsel on behalf of defendant Olga Beregovskaya, M.D. has filed a motion to dismiss, arguing that plaintiff failed to exhaust available administrative remedies prior to bringing this action and that his claims against defendant Beregovskaya in her official capacity are barred by the Eleventh Amendment. Plaintiff has filed a timely opposition, and defendant has filed a timely reply.
Plaintiff is proceeding on an amended complaint solely against defendant Beregovskaya. Therein, he alleges as follows. Since 1991, plaintiff has suffered from hepatitis C. While housed at California Substance Abuse Treatment Facility in 2006 through 2007, plaintiff requested treatment from defendant Beregovskaya, but she informed him that his disease was at stage four and it was therefore too late for him to receive any form of treatment. Plaintiff alleges that he requested a liver transplant and a regimen of interferon with Ribavirin and/or Pegasys, but defendant Beregovskaya denied his requests and told him that he only had five years to live. Plaintiff only receives Vitamin C, Neomycin, and iron tablets, and has not received any meaningful treatment for his disease. (Am. Compl. at 3.)
Plaintiff claims that defendant Beregovskaya has been deliberately indifferent to his medical needs in violation of the Eighth Amendment. He requests injunctive and monetary relief. (Am. Compl. at 1.)
DEFENDANT'S MOTION TO DISMISS
Counsel for defendant Beregovskaya argues that plaintiff's action should be dismissed because he brought this suit prior to exhausting available administrative remedies. Specifically, counsel contends that plaintiff alleges in his complaint that he only completed the informal level of review of the prison administrative grievance process. Based on plaintiff's allegations, counsel contends that plaintiff did not complete the three-step formal administrative review process required by the Prison Litigation Reform Act for California prisoners. (Def.'s Mot. to Dismiss at 3-6.)
Counsel for defendant Beregovskaya also argues that the Eleventh Amendment bars plaintiff's claims to the extent that he has sued the defendant in her official capacity. Specifically, counsel contends that the Eleventh Amendment bars a federal action for monetary damages against a state official acting in his or her official capacity in the same way it bars an action against a state. (Def.'s Mot. to Dismiss at 6-7.)
II. Plaintiff's Opposition
In opposition to the pending motion to dismiss, plaintiff argues that he has exhausted his administrative remedies through the director's level of review as required. He has attached to his opposition as exhibits Appeal No. SAT-F-07-03335 and Appeal No. SAT-F-07- 04451 and prison officials' responses thereto. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 2 & Exs. A & B.)
In addition, plaintiff argues that he has sued defendant Beregovskaya in her official capacity for injunctive relief and her individual capacity for monetary relief. Plaintiff argues that defense counsel's immunity argument therefore fails. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 3-4.)
In reply, counsel for defendant Beregovskaya reiterates that plaintiff's complaint fails to allege facts establishing that he exhausted his administrative remedies. In addition, counsel contends that plaintiff's opposition includes facts and documents that are irrelevant to resolving the pending motion to dismiss because they are outside of the record. Defense counsel contends, however, that plaintiff's opposition provides grounds to grant defendant's motion to dismiss with leave to amend. (Def.'s Reply at 3-4.)
Counsel for defendant Beregovskaya also reiterates that plaintiff's claims against the defendant in her official capacity are not actionable because a state official acting in official capacity is immune under the Eleventh Amendment. Counsel also contends that a state official acting in official capacity is not a "person" for purposes of § 1983. (Def.'s Reply at 2-3.)
IV. 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 ...