ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on a motion to dismiss brought on behalf of defendants Bakewell, Bal, Deems, Duc, Nangalama, and Walker. Plaintiff has filed an opposition to the motion, and defendants have filed a reply. Plaintiff has also filed an unauthorized response to defendants' reply, which defendants have moved to strike.
Plaintiff is proceeding on his original complaint against defendants Nurse Bakewell, Dr. Bal, Chief Executive Officer ("CEO") Deems, Dr. Duc, Dr. Nangalama, and Warden Walker. Therein, plaintiff alleges as follows. U.C. Davis orthopedic specialist Eric Giza performed ankle surgery on plaintiff on February 13, 2009. When plaintiff woke up from the surgery, Dr. Giza told him to elevate his ankle above his heart for the next three or four days and stay off of his ankle during the same period of time. Dr. Giza also told plaintiff to gradually start walking on his ankle with crutches as his pain would allow. Dr. Giza emphasized to plaintiff to proceed gradually to avoid re-injuring his ankle before the natural healing process began. (Compl. at 3-4.) However, when plaintiff returned to Folsom State Prison after the surgery, defendants Dr. Duc and Nurse Bakewell refused to provide him with a wheelchair, crutches, or a cane to help him avoid putting pressure on his ankle. Instead, they forced plaintiff to hop, limp, and hobble, which caused him to miss a post-surgery follow-up appointments at U.C. Davis and resulted in his ankle healing improperly. Plaintiff alleges that he notified defendants Dr. Bal, CEO Deems, Dr. Nangalama, and Warden Walker of the excruciating pain he was enduring without a wheelchair, crutches, or a cane, but they too ignored his requests for help. All told, plaintiff alleges that he went thirteen months without an appropriate and medically necessary assistive device from defendants. (Compl. at 4-8.)
Based on these allegations, plaintiff claims that the defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. As a result of defendants' conduct, plaintiff alleges that he now requires a second ankle surgery. Plaintiff also claims that defendants Dr. Duc, Nurse Bakewell, and Dr. Nangalama engaged in a conspiracy to fabricate his medical records in order tp conceal their misconduct. According to plaintiff, they falsely reported that plaintiff did not walk with a limp, that plaintiff's ankle showed no sign of swelling, and that plaintiff's ankle exam was normal. In terms of relief, plaintiff requests the award of monetary damages. (Compl. at 9-12.)
DEFENDANTS' MOTION TO DISMISS
Pursuant to unenumerated Rule 12(b), defense counsel moves to dismiss plaintiff's claims for failure to exhaust his administrative remedies prior to filing suit. Specifically, counsel contends that plaintiff failed to pursue Appeal Log # SAC-10-11890 to the third level of review (Office of Third Level Appeals-Health Care ("OTLA-HC")), and therefore any claims set forth therein are unexhausted. In that inmate appeal, plaintiff explained that officers arrived at his cell and asked him if he wanted to go to the U.C. Davis Medical Center for his appointment. Plaintiff explained to the officers that he could not go because prison officials had not provided him with a wheelchair for transportation. In terms of relief, plaintiff requested a medical chrono for a wheelchair and an increase in his pain medication. (Defs.' Mot. to Dismiss (Doc. No. 19) at 3-6 & Zamora Decl. Ex. A-1.)
Pursuant to Rule 12(b)(6), defense counsel also moves to dismiss plaintiff's complaint on the grounds that it fails to state a cognizable claim. Specifically, defense counsel contends that plaintiff's allegations against defendants Dr. Duc and Nurse Bakewell are insufficient to state a cognizable deliberate indifference claim. At best, according to defense counsel, plaintiff alleges a mere difference of opinion between himself and medical personnel with respect to the proper treatment of his condition. Counsel also contends that plaintiff's complaint fails to state a cognizable conspiracy claim against defendants Dr. Duc, Nurse Bakewell, and Dr. Nangalama because nowhere in his complaint does plaintiff allege that these defendants agreed to and willingly participated in a conspiracy to falsify plaintiff's medical records. Finally, counsel argues that because prisoners are not entitled to a specific grievance procedure, plaintiff's complaint fails to state a claim against defendants Nurse Bakewell, Dr. Bal, CEO Deems, Dr, Nangalama, and Warden Walker for the way that they adjudicated his inmate appeals or implemented the administrative appeals process within the prison system. (Defs.' Mot. to Dismiss at 7-10.)
II. Plaintiff's Opposition
In opposition to the defendants' motion to dismiss, plaintiff argues that he submitted Appeal Log # SAC-10-11890 to OTLA-HC, but prison officials never responded to it. In any event, plaintiff contends that he raised the same medical care claims in Appeal Log # 10-08-10823 and Appeal Log # 10-10-10368, and he pursued both of those appeals through the third level of appeal. (Pl.'s Opp'n to Defs.' Mot. to Dismiss (Doc. No. 27) at 1-3.)
Plaintiff also argues that his complaint states cognizable claims. As to his deliberate indifference claim against defendants Dr. Duc and Nurse Bakewell, plaintiff argues that the failure of those defendants to provide him with a wheelchair, crutches, or other assistive device caused him unbearable pain and contravened a prescription he was given for crutches eight days before his surgery. As to his conspiracy claim against defendants Dr. Duc, Nurse Bakewell, and Dr. Nangalama, plaintiff argues that they falsified his medical records to indicate that he walked with a steady gait and did not show signs of distress. In addition, plaintiff speculates that his Appeal Log # SAC-10-11890 never reached the third level of review because it was in the best interest of these defendants not to have their false medical reports reviewed and contradicted. Finally, as to his claims against defendants Dr. Bal, CEO Deems, and Warden Walker, plaintiff argues that these defendants were certainly placed on notice of his serious medical needs because they responded to a "great number" of his inmate appeals related to his medical claims set forth in his complaint. Plaintiff also contends that these defendants had knowledge that their subordinates refused to accommodate him with an assistive device after surgery and, therefore, they should be liable to him as well. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 5-13.)
In reply, defense counsel reiterates that plaintiff failed to exhaust any of his claims arising from his inmate grievance Appeal Log # SAC-10-11890. Counsel contends that plaintiff has submitted no evidence showing that he submitted an administrative appeal to the third level of review or that anyone purposely removed such an appeal from consideration. (Defs.' Reply (Doc. No. 30) at 2.)
Defense counsel also reiterates that plaintiff's complaint fails to state a cognizable claim. As to plaintiff's deliberate indifference claim against defendants Dr. Duc and Nurse Bakewell for allegedly refusing to provide plaintiff with an assistive device, defense counsel contends that plaintiff's own exhibits show that he had obtained crutches for his use both before and after surgery. As to plaintiff's conspiracy claim, counsel contends that there are no factual allegations in plaintiff's complaint, or in his opposition to the pending motion, indicating that defendants Dr. Duc, Nurse Bakewell, or Dr. Nangalama conspired to falsify plaintiff's medical records. Finally, defense counsel repeats that defendants Dr. Bal, CEO Deems, and Warden Walker's role in the events involved in this action was limited to their adjudication of plaintiff's inmate appeals. In counsel's view, the court should disregard plaintiff's attempt to raise a new claim for supervisory liability against those defendants. (Defs.' Reply at 3-6.)
I. Motion 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 circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The United States Supreme Court has ruled that exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. See Booth v. Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. See id. at 741 n.6. Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by filing an ...