The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are a motion to dismiss, filed on February 16, 2010, by defendants Fox and Miranda in which defendants Swingle and Nepomuceno seek to join by notice filed on March 2, 2010. Plaintiff filed an opposition to the notice on March 11, 2010, but provided no reason or argument whatever for the court not to permit defendants Swingle and Nepomuceno to join the motion. The motion to join is therefore granted. Plaintiff filed his opposition to the motion to dismiss as to defendants Fox and Miranda on March 15, 2010.
Plaintiff filed this case on the form for a habeas petition on May 11, 2009. By order, filed on July 14, 2010, plaintiff's allegations, wherein he named only Dr. Fox as a defendant but also made claims of inadequate medical care implicating unnamed defendants, were found to be violative of Fed. R. Civ. P. 8, and plaintiff was given leave to amend on the appropriate form. Plaintiff filed an amended complaint on August 13, 2009, which the court found appropriate for service, by order filed on August 31, 2010, upon defendants Michael Fox, Chief Medical Officer (CMO) Deuel Vocational Institution (DVI); Dorothy Swingle, CMO at High Desert State Prison (HDSP); Dr. Nepomuceno and Physician's Assistant Raphael Miranda.
Plaintiff alleges on May 30, 2008, while he was housed at DVI, he was examined via Tele-Med by a Dr. Gregory Melchor, a professor of medicine from U.C. Davis Medical School; blood tests revealed that plaintiff had two strains of the Hepatitis-C virus. Amended Complaint (AC), p. 3. Dr. Melchor ordered immediate treatment of Interferon and Ribavirin, which was never administered. Id.
Thereafter, on June 10, 2008, plaintiff was taken to Manteca where he was examined by a gastroenterologist named Dr. Tran, who agreed that plaintiff's treatment with Inteferon and Ribavirin should begin immediately, but defendant Fox vetoed the treatment again without explanation. AC, p. 4. On October 3, 2008, plaintiff was set up for a Tele-Med interview/exam again, this time to UCSF to the CDCR head physician, Dr. Joanne Imperial, who ordered immediate treatment with Ribavirin to begin "stat," but once again, for a third time, defendant Fox nixed the treatment. Id.
After nearly two months of repeated sick-call requests, plaintiff was informed that he would not be treated at DVI, after which he contacted the Prison Law Office in San Quentin for help. AC, p. 4. They sent a letter to the CMO at DVI (presumably defendant Fox), setting forth two options: that the Interferon treatment begin immediately (at DVI) or that plaintiff be sent to a mainline prison to begin the Interferon treatment immediately. Id. CDCR opted to send plaintiff to HDSP by special medical transport on January 27, 2009. Id. at 4-5.
Despite plaintiff's reiterating to all medical personnel, including defendant Miranda, that his Interferon and Ribavirin treatment should be started immediately, and despite his having filed several 602 inmate appeals which were granted, no treatment was administered. AC, p. 5. Plaintiff sent personal notices to defendants Swingle and Nepomuceno at HDSP, all to no avail. Id. Although plaintiff kept requesting to see a doctor on CDCR 7362 sick call forms, he was repeatedly called to medical by defendant Miranda, a physician's assistant, who kept telling plaintiff that he was scheduled for the Hep-C clinic without further explanation even though plaintiff told him the story of Dr. Imperial's prescription orders and asked him to refer to her on April 7, 2009 and in June 2009. Id. Plaintiff adds "I attached the 602's and evidence supporting my claims to the original complaint...." Id. Plaintiff seeks money damages for the fourteen-month period that the medical treatment was withheld, saying that defendants had notice from December 12, 2007, although plaintiff begins in this complaint with allegations dating from May 30, 2008. Id. at 3.
Defendants move for dismissal of defendants Fox and Miranda in which defendants Swingle and Nepomuceno join on the grounds that plaintiff failed to exhaust administrative remedies pursuant to non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure. Motion to Dismiss (MTD), pp. 1-15; Joinder, pp.1-2. In the alternative, defendants Swingle, Nepomuceno and Miranda move for their dismissal under the doctrine of res judicata on the ground that a final judgment has previously been entered in their favor in Case No. CIV-S-09-1300 CMK P. Id. In a final alternative, defendants Swingle, Nepomuceno and Miranda move for their dismissal on the ground that plaintiff has failed to state a claim against them under Fed. R. Civ. P. 12(b)(6). Id.
Defendants point out that plaintiff filed two separate actions concerning the same claims and defendants. MTD, Docket # 22-1, p. 4. Defendants, on February 16, 2010, requested that the court take judicial notice of the prior complaint, Coates v. Fox, et al.,*fn1 Case No. CIV-S- 09-1300 CMK P, including specifically, the May 11, 2009, original complaint (with attached exhibits in that case), the screening order filed on October 28, 2009, and the December 14, 2009 order dismissing defendants Moore, McDonald, Swingle, Nepomuceno from that action and directing that the action proceed only as to defendant Fox. A court may take judicial notice of court records. See Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Therefore, the court grants defendants' request for judicial notice of Case No. CIVS-09-1300 CMK P and the documents from that case.
The reference plaintiff makes within the instant action to the "original complaint" (AC, p. 5) is plainly not to the complaint initially filed in this action on a petition form because the only attachment thereto is the copy of one first level appeal response (Log no. DVI-15-08-17445), signed on Jan. 16, 2009, wherein plaintiff apparently requested immediately starting his Interferon and Ribavirin treatment, which is deemed fully granted. It is patently obvious that by the "original complaint," plaintiff means the action under 42 U.S.C. § 1983 that he filed, entitled Coates v. Fox, et al, and denominated Case No. CIV-S-09-1300 CMK P. That action, filed on a civil rights complaint form, is numbered sequentially as the case before this one, CIV-S-1300, and was filed on the same day as this case, on May 11, 2009. To that filing is attached, inter alia, copies of a number of plaintiff's 602 appeals and responses, copies of medical reports, a copy of a government claim form to the California Victim Compensation and Government Claims Board, a copy of a reasonable modification and accommodation request form (CDC 1824). Within that complaint, plaintiff makes essentially the same allegations against the same defendants at issue herein, contending that, inter alia, defendant Fox has vetoed his Interferon/Ribavirin treatment despite the orders of Drs. Melchor and Imperial, as was claimed in the amended complaint underlying this action. MTD, Request for Judicial Notice, Exhibit A, complaint in Case No. 09-CIV-S-09-1300 CMK P, doc. # 23-1, pp. 5-6. Plaintiff also contends that defendants Swingle, Nepomuceno and Miranda have all been responsible for delaying his treatment with Interferon and Ribavirin. Id. Therefore, on the face of it, this action is entirely duplicative of CIV-S-1300 CMK P, and it certainly appears that plaintiff should not have been permitted at the outset to proceed in two separate actions on the same claims.
In the preceding action, which still proceeds against defendant Fox, plaintiff's original complaint was ordered served upon defendant Fox by order filed on October 28, 2009 (docket # 9). By separate order, filed on October 28, 2009 (docket # 10), plaintiff was directed to show cause why the claims as to the remaining defendants, including defendants Swingle, Nepumuceno and Miranda should not be dismissed for failure to state a claim. Thereafter, plaintiff failed to respond to the show cause order and Magistrate Judge Kellison, to whose jurisdiction plaintiff ...