ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. Defendant Kanan has filed a motion to dismiss based on plaintiff's alleged failure to exhaust administrative remedies; defendants Kofoed and Traquina have filed a motion for summary judgment. Plaintiff has filed a motion in limine in anticipation of trial.
I. The Motion To Dismiss (Docket No. 40)
The Prison Litigation Reform Act (PLRA) provides that "no action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Conditions of confinement" subject to exhaustion have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prisons." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint. Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case"); Brown v. Sikes, 212 F.3d 1205, 1209 (11th Cir. 2000) (1997e(a) requires that a prisoner provide as much relevant information as he reasonably can in the administrative grievance process).
Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules . . ." Woodford v. Ngo, 548 U.S. 81, 90 (2006). However, an inmate is required to exhaust those remedies that are available; for a remedy to be "available," there must be the "possibility of some relief. . . ." Booth, 532 U.S. at 738.
California prison regulations provide administrative procedures in the form of one informal and three formal levels of review to address an inmate's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Id. § 3084.5. The grievance process must be completed before the inmate files suit; exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002).
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. At 1119-20. Defendants bear the burden of proving plaintiff's failure to exhaust. Id. at 1119. To bear this burden: a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case,. . . . With regard to the latter category of evidence, information provided the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, "available."
In his fourth amended complaint, plaintiff alleges that an x-ray taken in December 2005 showed that his fourth metacarpal bone on his right hand, which had previously been broken and treated, was still deformed; that defendant Kanan, the Deputy Director of the Division of Correctional Health Services, approved further consultation about plaintiff's hand, but then failed to follow-up on this approval. Fourth Amended Complaint (FAC) at 6, 10-11.*fn1
Defendant has attached a declaration from N. Grannis, the Chief of the Inmate Appeals Branch (IAB) of the California Department of Corrections and Rehabilitation (CDCR). Grannis says that inmate appeals accepted for review at the Director's Level are logged into the computer with the Log Number assigned by the prison. Declaration of N. Grannis (Grannis Decl.) ¶ 5. She then avers that the IAB accepted only one appeal from plaintiff, Log No. SOL-05-159, before plaintiff filed his original complaint on November 18, 2005. Id. ¶ 5 & Ex. A. This appeal from California State Prison-Solano was denied on June 29, 2005, well before defendant Kanan is alleged to have failed in her duty to follow-up on plaintiff's medical care. Id. ¶ 6 & Ex. B.
Plaintiff argues the issue complained of here was exhausted by Log Number 06-1759, which was submitted on May 17, 2006 and denied at the Director's Level on November 20, 2006. Opp'n at 10-14. This grievance raises many issues and arguably takes the CDCR medical community to task for not following up on plaintiff's continued need for repair of and therapy for his injury. Id. at 12-14. Nevertheless, it cannot serve to exhaust plaintiff's remedies on this issue, for it was filed initially and then completely exhausted only after plaintiff filed his original complaint. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002).
II. The Motion For Summary Judgment (Docket No. 51)
A. Summary Judgment Standards Under Rule 56
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," ...