ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is defendant Dr. Rohrer's motion to dismiss this action pursuant to Rule 12(b) of the Federal Rules of Civil Procedure due to plaintiff's alleged failure to exhaust his administrative remedies prior to filing this action. Plaintiff has opposed the motion and defendant has filed a reply.
Plaintiff filed his complaint in this court on March 6, 2009. On November 9, 2009, the court dismissed plaintiff's complaint, finding his allegations concerning inadequate medical care to be insufficient. The court granted plaintiff leave to file an amended complaint within thirty-days. See Doc. No. 7 at 5. On January 6, 2010, plaintiff filed his amended complaint. (Doc. No. 12.) On September 21, 2010, the court determined that the amended complaint stated a cognizable Eighth Amendment medical care claim as to defendant Dr. John Rohrer.*fn1 (Doc. No. 14.) Although service was deemed appropriate on defendant Dr. Rohrer, the court did not order service on supervisorial defendants, Warden Dickinson and Chief Medical Officer Traquino. Subsequently, on October 21, 2010, the court ordered the U.S. Marshal to serve process only on defendant Dr. Rohrer.
In his amended complaint plaintiff alleges as follows. Defendant Rohrer is a physician employed at the California State Prison - Solano (CSP-Solano) where plaintiff was incarcerated in 2004. (Doc. No. 12 at 7.) On March 22, 2004, defendant examined plaintiff's left shoulder because plaintiff was suffering from "sudden pain in his left-shoulder which was swollen." (Id.) Defendant Dr. Rohrer ordered an MRI for plaintiff which was administered on June 6, 2004. (Id. at 7 & 23.) The radiology report from that MRI noted "tendinitis or partial tear of the supraspinatus tendon" and "AC joint degenerative change." (Id. at 23.)
Plaintiff contends that defendant Dr. Rohrer "let plaintiff transfer
from state prison to state prison without submitting the necessary
medical holds so that plaintiff could receive his left shoulder
surgery . . . [and as a result] plaintiff now suffers from
irreversible injury." (Id. at 8.) On September 23, 2008, plaintiff had
surgery at Queen of the Valley Medical Hospital, after four years of
delay, pain and suffering. (Id. at 10.) Plaintiff believes that his
transfers from prison to prison were part of a conspiracy planned by
defendant Dr. Rohrer and Chief Medical Officer Traquina. (Id. at 10.)
Plaintiff also contends that defendant Dr. Rohrer "failed to submit a
referral to a Board Certified orthopedic specialist for
surgery-corrective treatment of left shoulder/right knee surjury
[sic]." (Id. at 8-9.) Plaintiff contends that defendant
was deliberately indifferent with respect to plaintiff's medical care
in violation of the Eighth and Fourteenth Amendments.*fn2
(Id. at 9.)
Plaintiff alleges the following five claims for relief: (1) violation of Eighth and Fourteenth Amendments for subjecting plaintiff to cruel and unusual punishment; (2) violation of the Eighth and Fourteenth Amendments for violating plaintiff's "right to personal security[;]" (3) conspiracy in violation of 42 U.S.C. §§ 1985 and 1986; (4) failure of defendant Dr. Rohrer to be properly trained and supervised in violation of plaintiff's rights under the Eighth and Fourteenth Amendments; and (5) negligence under California Civil Code § 43 et seq. (Id. at 11-12.) In terms of relief, plaintiff seeks damages, including punitive damages, declaratory judgment and injunctive relief. (Id. at 12-13.)
Plaintiff contends that on December 28, 2007, he exhausted his available administrative remedies by filing his inmate appeal, Log No. PVSP-07-01024. (Id., ¶ 35 at 11.)
Defendant moves for the dismissal of this action due to plaintiff's alleged failure to exhaust administrative remedies prior to filing suit as required. Defendant makes two arguments in support of his motion.
First, defendant argues that although plaintiff submitted an inmate appeal, log number PVSP-07-01024, the issues raised in that inmate appeal are not the same issues raised in plaintiff's civil rights complaint pending before this court. (P&A at 8.) Defendant contends that in that inmate appeal plaintiff complained only that a Dr. Diep had recommended surgery for plaintiff's left shoulder after an updated MRI was done on plaintiff's left elbow. (Id. at 3-4.) According to defendant, in that inmate appeal plaintiff also alleged that the recommended MRI had not been administered and requested that all recommended surgeries and specialized services in his case be performed on an emergency basis. (Id. at 4.) Defendant notes that this appeal was partially granted and it was ordered that PVSP medical staff coordinate with staff at the California Medical Facility regarding plaintiff's referral for back surgery, referral for orthopedics for plaintiff's shoulder and referral to a rheumatologist. (Id.)
Defendant Dr. Rohrer argues that this inmate appeal did not put him on notice of any complaint by plaintiff against him for failing to adequately treat plaintiff's shoulder. (Id. at 9.) Defendant also notes that this inmate appeal was filed nearly three years after any alleged deliberate indifference attributable to him in plaintiff's amended complaint filed in this action and was submitted while plaintiff was incarcerated at PVSP, not at CSP-Solano where defendant Dr. Rohrer is employed. (Id.) In addition, defendant Dr. Rohrer argues that this inmate appeal raised concerns by plaintiff with respect to Drs. Smith, Phi, and Diep at PVSP, not himself or the medical staff at CSP-Solano. (Id.) Thus, defendant Dr. Rohrer argues, the issues raised in the inmate appeal filed on December 28, 2007 and the claims set forth in the amended complaint pending before this court are completely different with respect to time, place, manner and participants and that inmate appeal did not serve to satisfy the exhaustion requirement. (Id.)
Second, defendant Dr. Rohrer argues that although plaintiff filed another inmate appeal that addressed the issues and claims raised in plaintiff's amended complaint pending before the court, Log No. CSP-S-04-00844, he failed to exhaust his administrative remedies with respect to that grievance by appealing to the highest level of administrative review. (Id. at 9-10.) In this latter administrative appeal plaintiff sought reasonable accommodations under the Americans with Disabilities Act (ADA). (Id.) According to defendant Dr. Rohrer, plaintiff alleged in inmate appeal CSP-S-04-00844 that he was being deprived of necessary pain medications and he requested to have access to occupational therapy, to be seen by an orthopedic surgeon, to have the MRI for his knee damage read to him, and to have "'grab bars'" installed in the shower area of his housing unit. (Id. 4-5.) On April 2, 2004, defendant Dr. Rohrer interviewed plaintiff at the first formal level of review with respect to this inmate appeal. (Id. at 5.) The appeal was partially granted and defendant Dr. Rohrer referred plaintiff to an orthopedic specialist and a physical therapist. (Id.) Defendant also prescribed medications for plaintiff but denied his request for the installation of grab bars in his housing unit. (Id.) Plaintiff appealed to the second level of administrative review arguing that defendant Dr. Rohrer was biased, discriminatory and violating the ADA. (Id. at 6.) At the second level, plaintiff's inmate appeal was again partially granted as to plaintiff's request to be seen by an orthopedic specialist and to be provided occupational and physical therapy. (Id.) The second level response was returned to plaintiff on May 10, 2004. (Id.) Accordingly, plaintiff had fifteen working days to appeal to the third or Director's level of review. (Id.) However, no appeal to the third level was submitted by plaintiff. (Id.)
In support of his arguments in this regard, defendant Dr. Rohrer has submitted several declarations. D. Foston, the Chief of the Inmate Appeals Branch, has submitted a declaration confirming that plaintiff exhausted appeal Log No. PVSP-07-01024. (Doc. No. 19-2 at 3.) He also describes the inmate grievance system and explains that an inmate appeal "must be submitted within 15 workings days of the event or decision that is the subject of the appeal[.]" (Id. at 1.) Santos Cervantes, one of two Appeals Coordinators at CSP-Solano, has provided a declaration concerning plaintiff's inmate appeal Log No. CSP-04-00844, which Cervantes describes as a "medical appeal" concerning "ADA issues." (Doc. No. 19-4 at 3.) Cervantes also states that the second level response with respect to that inmate appeal was returned to plaintiff on May 10, 2004 and that he had 15 working days to appeal to the third level of review. (Id. at 3-4.) Copies of plaintiff's inmate appeal Log No. CSP-04-00844, the second level decision in response thereto, and tracking records with respect to that inmate appeal ...