ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On April 28, 2011, defendants Wedell and Bobbola filed a motion to dismiss, and/or in the alternative, motion for summary judgment. Plaintiff has filed an opposition to the motion, defendants have filed a reply, and plaintiff has filed an unauthorized response to defendants' reply.
In his complaint, filed on April 14, 2010, plaintiff alleges as follows. Defendants Dr. Wedell and Dr. Bobbola, employed as physicians at the California State Prison-Sacramento (CSP-Sacramento), refused to order a new MRI for plaintiff and generally failed to provide adequate medical care for plaintiff's back pain which limited his mobility and caused him sleep deprivation. Plaintiff was transferred to CPS-Sacramento on October 8, 2009, and later that month, sought treatment for his back pain. (Compl. (Doc. No. 1) ¶¶ 9-11 at 4.) Defendant Dr. Bobbola refused to order any medication to treat plaintiff's pain until she had reviewed plaintiff's previous MRI results. (Id. ¶ 11 at 4.) Those MRIs were taken in 2000 and 2004 and confirmed that plaintiff had suffered spinal damage. (Id. at 3 & ¶ 5 at 4.) However, plaintiff's MRI results were misplaced by prison medical staff and could not be located. (Id. ¶¶ 12-13, at 4-5.) As a result, defendants "refused treatment of any kind for several months. [sic] causing severe pain and suffering because of damage to back and left leg." (Id. ¶ 14 at 5.)
Plaintiff filed a 602 inmate appeal on or about October 19, 2009 (Log No. SAC-10-09-12724), requesting that his 2002 MRI results be located so that he could be treated and if the MRI results could not be located, that a new MRI be taken. (Id. ¶ 14 at 5; Id. at 18.) On February 9, 2010, that administrative appeal was partially granted at the first level of review. (Id. at 18.) In partially granting the appeal prison officials advised plaintiff that he had already been provided copies of the MRI's taken on December 13, 2000 and May 6, 2004, that no MRI had been taken in 2002 and that he had previously been advised "to submit a 7362 for the doctor line to have a specialty referral written." (Id.)
Plaintiff submitted 7362 medical request forms on the following dates: October 12, 2009 (requesting a new MRI and indicating he has pain on both sides of his back and left leg); November 26, 2009 (requesting his 2002 MRI be located); January 16, 2010 (requesting MRI and pain medication); March 15, 2010 (indicating he has sharp pain, cannot sleep, cannot stand for longer than 5 minutes); and March 19, 2010 (requesting new back brace and cane). (Id. at 20-27.)
On January 20, 2010, plaintiff submitted an emergency inmate appeal (Log No. SAC-10-10-10037) concerning pressure sores on his buttocks and back and requesting an egg crate mattress and donut cushion. (Id. at 29.) Plaintiff contends that in responding to this appeal, defendant Dr. Wedell refused to acknowledge that plaintiff is an ADA inmate. (Id. ¶ 17 at 5.) However, plaintiff's own complaint alleges that defendant Dr. Wedell did order a double mattress, an "EMG/NCV evaluation for nerve damage, and a low dose of 'Gabapentin' for pain" for plaintiff, apparently in response to this appeal. (Id. ¶ 17 at 5; id. at 29.)
On March 17, 2010, "Dr. Wedell finally ordered 'Methadone' and 'Gabapentin' for pain." (Id. ¶ 18 at 6.) Although plaintiff complained about intense pain radiating from both sides of his back and left leg to his foot, defendant Dr. Wedell "still refused to order a new MRI" for plaintiff's back. (Id. ¶ 19 at 6.)
Because plaintiff continued to suffer severe pain, on April 7, 2010, he was placed on "Dr. Line for further back pain treatment." (Id. ¶ 20 at 6.) Plaintiff told defendant Dr. Wedell that he still had severe pain, that he could not sleep, that the pain was now radiating from both sides of his back and up and down his spine to his left leg and foot with "burning and tingling" in his foot." (Id.) Defendant Dr. Wedell "stated that the nerve damage was not severe" and although plaintiff explained about the worsening pain and difficulty sleeping, defendant Dr. Wedell still refused to order a new MRI. (Id.) As a result of this lack of adequate treatment, plaintiff "still suffers back pain[,] cannot sleep, cannot stand for longer than 5 to 20 minutes at a time" even as defendants continue to refuse to order a new MRI. (Id. ¶¶ 22-23 at 7.)
Plaintiff seeks the following relief: Declaratory judgment affirming his constitutional rights under the Fourteenth and Eighth Amendments, and declaring that defendants have caused "infliction of physical and mental stress;" injunctive relief requiring defendants to provide him with a new MRI "and fair and adequate treatment;" a preliminary injunction "which prevents defendants from their continued ongoing violations of plaintiffs [sic] constitutional rights under the 8th and 14th Amendments to the United States Constitution, and California State Law; a preliminary hearing in support of the preliminary injunction; appointment of counsel; monetary damages in the amount of $2,000 for each day plaintiff was subjected to inadequate medical treatment; an order finding that defendants are not entitled to qualified immunity; and other relief the court "deems just and proper[.]" (Id. at 7-9.)
DEFENDANTS' MOTION TO DISMISS
Defendants move to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure on the ground that plaintiff has failed to exhaust his administrative remedies prior to filing this civil action as required. In support of their motion, defendants rely on the declaration of Aida Briones, the Appeals Coordinator at CSP-Sacramento. (Doc. No. 41.)*fn1 According to that declaration and the attachment thereto, plaintiff filed the following inmate appeals with the results as indicated:
(1) Log No. SAC-H-09-01559, dated November 20, 2009: reasonable accommodation or modification request (CDC 1824) requesting medication and a wheelchair. On December 7, 2009, the request was suspended pending specialty testing. Plaintiff appealed to the first level and the appeal was denied on April 15, 2010.
(2) Log. No. SAC-09-12724, dated November 28, 2009: inmate appeal (CDCR 602) requesting that his MRI reports be located and a new MRI be done on his spine. The first level review was partially granted on February 16, 2010, but no appeal was taken to the second level.
(3) Log. No. SAC-10-10037, dated December 11, 2009: inmate appeal (CDCR 602) requesting an egg crate mattress and donut cushion because of pressure sores on buttocks and back. The appeal was denied at the first level and partially granted at the second level.
(See Doc. No. 41-1 at 6-23.)
Defendants argue that plaintiff failed to exhaust his administrative remedies prior to filing suit since none of his three inmate appeals were taken by him to the Director's level of review. In addition, defendants argue that plaintiff failed to exhaust his administrative remedies because none of his inmate appeals have a connection to the allegations against the defendants set forth in his complaint, the defendants were not named in his inmate appeals, and the defendants were not provided adequate notice through the inmate grievances of the allegations plaintiff has advanced in his complaint. (Doc. No. 39 at 11.) Defendants argue that dismissal with prejudice is appropriate where administrative remedies were available to plaintiff, were not pursued and have now become unavailable. (Id. at 12.) According to defendants, plaintiff had the opportunity to exhaust his administrative remedies but failed to ...