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 defendants' motion to dismiss. Plaintiff opposes the motion.
In the operative first amended complaint ("FAC"), filed July 13, 2011, plaintiff alleges that on June 7, 2009 he suffered a painful injury to his left hand "ring" finger while playing basketball at California Correctional Center in Susanville, California ("CCCSusanville"). Plaintiff immediately sought medical attention, but was told by medical staff that the medical office was closed for the day and that he should "come back tomorrow." Plaintiff returned the next day and filled out a medical request form, but was not seen that day and did not receive a medical ducat. When plaintiff returned to the medical office 10-12 days later to check on the status of his medical request, he was informed that his medical request form was lost and that he needed to fill out another form, which plaintiff filled out. Plaintiff eventually received a medical ducat on this second medical request form, which was deemed "Routine," two weeks later. Finally, over one month after the injury date, on July 10, 2009, plaintiff was seen by a doctor.
On July 15, 2009, an x-ray was taken of plaintiff's finger, which showed a fresh, partially-healed broken finger. The doctor examining the x-ray told plaintiff that because of the delay in treatment, the finger had started to heal on its own and there was nothing to be done.
On July 28, 2009, plaintiff was sent for an orthopedic consultation and was told that he may need surgery. Plaintiff was referred to a specialist in Reno, Nevada.
On August 27, 2009, after having not received any update on the treatment for his finger or medication for pain management, plaintiff filed a third medical request form asking for the status of his treatment.
Plaintiff claims that he was ultimately transferred to High Desert State Prison ("HDSP") in retaliation for filing grievances related to the delay in treatment. While at HDSP, plaintiff did receive treatment for his finger and for the first time received medication for pain management. On October 27, 2009, plaintiff was seen by a doctor who informed him that, in light of the fact that the finger has already healed, surgery could possibly cause further problems.
Plaintiff's finger is now permanently disfigured.
Plaintiff names as defendants CCC-Suanville's Chief Medical Officer Andrew Pomozal, whom plaintiff claims was directly responsible for ensuring that plaintiff's medical request forms were processed and not lost; CCC-Susanville Warden R.E. Barnes, who failed to provide a facility that could provide adequate medical health care and who failed to guarantee that inmates would have their medical request forms processed on time to ensure their safety; and Mathew Cate, Director of the California Department of Corrections and Rehabilitation, for his role in the institution's overcrowding problem, which resulted in inadequate medical care.
Plaintiff seeks injunctive relief and damages.
STANDARDS FOR A MOTION TO DISMISS
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
On August 20, 2012, plaintiff received the notice required by Wyatt v. Terhune, 305 F.3d 1033 (9th Cir.2002), for opposing a motion to dismiss for failure to exhaust administrative remedies pursuant to ...