The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS (Doc. 19) OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Manuel Arenas ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 28, 2009, Defendant filed a motion to dismiss on the ground that Plaintiff failed to fully exhaust his administrative remedies prior to filing suit. (Doc. #19.) Plaintiff filed an opposition to Defendant's motion to dismiss on December 2, 2009. (Doc. #20.) Defendant filed a reply to Plaintiff's opposition on December 15, 2009. (Doc. #23.)
Plaintiff filed his complaint in this action on September 11, 2008. (Doc. #1.) Plaintiff claims that he suffered a seizure attack on March 10, 2008 because he was repeatedly denied his pain medication. Plaintiff alleges that Defendant Enanmoh was aware of Plaintiff's medical condition and need for pain medication. Plaintiff further alleges that Enanmoh was responsible for ensuring that Plaintiff received his pain medication and was aware that his failure to provide Plaintiff with his medication would cause unbearable pain and the possibility of a seizure.
B. Defendant's Motion to Dismiss
Defendant argues that Plaintiff's complaint should be dismissed because Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act. (Def.'s Mem. of P. & A. in Supp. of Mot. to Dismiss 3:1-5:17.) Defendant argues that proper exhaustion requires Plaintiff to proceed through an initial informal level of appeal, followed by three formal levels of appeal that culminate in a Director's Level Decision. (P. & A. in Supp. of Mot. to Dismiss 4:11-16.) Defendant claims that Plaintiff received an adverse decision at the first formal level of administrative review. (P. & A. in Supp. of Mot. to Dismiss 5:1-6.) Instead of appealing the first formal decision to the second level, Plaintiff did not make any attempt to appeal the first level decision. (P. & A. in Supp. of Mot. to Dismiss 5:6-8.) Defendant provides a declaration from N. Grannis, the Chief of the California Department of Corrections and Rehabilitation's ("CDCR") Inmate Appeals Branch, that states that Plaintiff did not fully exhaust appeal number SATF-M-08-2326. (Decl. of N. Grannis 2:3-12.)
C. Plaintiff's Opposition
In his opposition, Plaintiff argues that appeal number SATF-M-08-2326 is irrelevant to this litigation. (Pl.'s Opp'n to Defs.[sic] Mot. to Dismiss: P. & A. in Supp. Thereof 2:20-3:3.) Plaintiff claims that appeal number SATF-D-06-1736 is the appeal he filed concerning the events described in his complaint. (Opp'n 2:20-3:3.) Plaintiff contends that he appealed SATF-D-06-1736 through the Director's Level. (Opp'n 3:4-6.)
Alternatively, Plaintiff argues that if SATF-M-08-2326 is the appeal relevant to this action, the Court should deem it fully exhausted because Defendant failed to respond to the grievance in a timely manner. (Opp'n 3:15-24.)
Defendant responds that appeal number SATF-D-06-1736 was resolved on August 30, 2006. (Def.'s Reply to Pl.'s Opp'n to Mot. to Dismiss 2:9-10.) Defendant notes that the events described in Plaintiff's complaint took place in March 2008. (Reply 1:25-27.) Defendant contends that appeal number SATF-D-06-1736 was adjudicated on August 30, 2006 and cannot exhaust Plaintiff's administrative remedies for claims premised on events that occurred in March 2008. Defendant argues that SATF-M-08-2326 is the only appeal that references the events that occurred in March 2008. (Reply 2:2-10.)
Addressing Plaintiff's arguments with respect to SATF-M-08-2326, Defendant concedes that the response to Plaintiff's appeal was delayed due to personnel shortages. (Reply 2:13-18.) Plaintiff's appeal was submitted on April 29, 2008 and prison officials responded to it on September 3, 2008. (Reply 2:13-18.) The response deadline was June 11, 2008. (Reply 2:14-15.) Defendant argues that Plaintiff initiated this lawsuit on September 11, 2008 and had an opportunity to pursue his appeal to the second level but elected not to do so. (Reply 2:18-23.) Defendant asserts that Plaintiff should not be permitted to ...