The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. The operative Second Amended Complaint (SAC) was served on four defendants. (Dkt. Nos. 24, 27.) Pending before the court is three defendants' motion to dismiss the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6), filed on July 23, 2012.*fn1 (Dkt. No. 28.) Plaintiff has filed an opposition, and defendants have filed a reply. (Dkt. Nos. 35, 36.) For the reasons discussed below, the undersigned will recommend that defendants' motion be granted in part and denied in part.
As recounted in the court's March 15, 2012 order, plaintiff commenced this action on July 20, 2009 and on June 14, 2010 filed the SAC (Dkt. No. 10). Plaintiff claims that defendants violated his Eighth Amendment right to adequate medical care. He alleges that after he tested positive for latent tuberculosis in March 2006, defendants refused to properly administer a course of treatment to prevent him from developing active tuberculosis. He alleges that, as a result, he is at a high risk of developing active and multi-drug resistant tuberculosis.
On December 20, 2010, the previously-assigned magistrate judge determined at the screening stage that the SAC failed to state a claim upon which relief could be granted, as plaintiff did not allege that he had sustained any injury or was in immediate danger of injury. As plaintiff had consented to the magistrate judge's jurisdiction, the magistrate judge entered a judgment of dismissal. (Dkt. Nos. 12, 13.) Plaintiff appealed the judgment to the United States Court of Appeals for the Ninth Circuit. (Dkt. No. 14.)
On March 6, 2012, the Ninth Circuit reversed the judgment of dismissal, holding that, "[a]t this early stage of the proceedings, we cannot say that these allegations fail to state an Eighth Amendment injury." (Dkt. No. 17.) The Ninth Circuit cited Helling v. McKinney, 509 U.S. 25, 32-35 (1993), which held that an inmate stated an Eighth Amendment cause of action concerning his exposure to second hand smoke, which put him at risk of future damage to his health. (See Dkt. No. 19 at 3.)
This action was subsequently reassigned to this court. On March 15, 2012, in light of the Ninth Circuit's decision, the court ordered the SAC to be served on defendants Callison, Westin, Smith, and Nelson. (Dkt. No. 19.)
Defendants Callison, Westin, and Smith first argue that the SAC fails to state a claim upon which relief may be granted against any of them. Defendants argue that plaintiff has not sufficiently alleged their involvement in the medical treatment of which he complains. They also argue that, by refusing treatment as of October 25, 2006, plaintiff caused his own alleged injury of heightened risk of active TB.
Defendants alternatively argue that plaintiff has not exhausted his administrative remedies as to his claims. They argue that plaintiff's administrative complaint about his TB treatment was untimely, as he waited so long to file the complaint that the CDCR "had no opportunity to resolve Huynh's complaints before he abandoned his treatment and filed suit." (Dkt. No. 28-1 at 9-10.)
These arguments and plaintiff's responses are discussed below.
IV. Failure to State a Claim
The SAC alleges as follows: At all relevant times, defendant Callison was a Medical Technical Assistant (MTA) employed at High Desert State Prison. (SAC, ¶ 5.) Defendants Westin, Smith, and Nelson were correctional officers at HDSP. (Id., ¶¶ 7-9.)
On March 22, 2006, plaintiff was given a skin test for tuberculosis (TB), and tested positive. (Id., ¶¶ 12-13.) On April 13, 2006, plaintiff consented to a course of preventative drug treatment for TB. (Id., ¶ 14.) A non-defendant medical staffer told plaintiff that he would start the medication the following Tuesday and take it every Tuesday and Thursday for the next six months. (Id., ¶ 15.)
Plaintiff was given TB medication on April 18 and 20, but was not given any medication on April 25. (Id., ¶ 17.) That day, plaintiff told defendants Westin, Nelson, and Smith and unnamed MTAs that he had not received his medication that day, but they did nothing about it. (Id., ¶ 18.) Despite telling Nelson, Smith, and Westin numerous times that he had not received his medication, plaintiff was ...