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March 26, 2003


The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge.

ORDER OF DISMISSAL (Docket Nos. 33, 62, 65, 69, 74)
Plaintiff, currently incarcerated at San Quentin State Prison ("SQSP"), filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983. After reviewing the initial complaint, the Court dismissed the claims against several defendants for failure to state a cognizable claim for relief and granted leave to amend as to the remaining defendants. Plaintiff filed a first amended complaint and an amendment to the first amended complaint (collectively referred to hereinafter as "the amended complaint"), which allege that defendants, all employees of SQSP, failed to provide adequate medical care, in violation of his Eighth Amendment rights. The Court ordered the United States Marshal to serve the amended complaint on defendants and ordered defendants to file a dispositive motion. Defendants filed a motion for summary judgment, after which plaintiff filed an opposition, defendants filed a reply and plaintiff filed a "response" to the reply.


Plaintiff claims that he has not received adequate treatment for Hepatitis C or for pain and discomfort in his lower stomach area, which he alleges to be a symptom of Hepatitis C. Plaintiff also alleges that he had an elevated carcinoembryonic antigen ("CEA") level, indicating that he has cancer, and that he has not been treated for cancer. Plaintiff also alleges that he has not received housing in the first tier of cells to accommodate his spinal cord injury.


Defendants contend that plaintiff has not exhausted his administrative remedies with respect to his claims that he has not received proper treatment for Hepatitis C, abdominal pain, and cancer. Exhaustion is an affirmative defense as to which defendants have the burden of proof; it should be raised in an unenumerated Rule 12(b) motion to dismiss rather than in a motion for summary judgment. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Accordingly, with respect to the issue of exhaustion, the Court construes defendants' motion for summary judgment as an unenumerated motion to dismiss under Rule 12(b).

A. Defendants' Motion

The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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 under § 1997e(a) is mandatory and not merely directory. Porter v. Nussle, 122 S.Ct. 983, 988 (2002). All available remedies must be exhausted; those remedies "need not meet federal standards, nor must they be `plain, speedy, and effective.'" Id. (citation omitted). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion is a prerequisite to all prisoner lawsuits concerning prison life, whether such actions involve general conditions or particular episodes, and whether they allege excessive force or some other wrong. Porter, 122 S.Ct. at 992.

The State of California provides its prisoners and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. See Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). See id. at 1237-38.

In deciding an unenumerated motion under Rule 12(b) to dismiss for failure to exhaust nonjudicial remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20.*fn1 Defendants have filed a declaration of Tony Loftin, Assistant Chief of the Inmate Appeals Branch at the California Department of Corrections ("CDC"). Loftin searched the CDC inmate appeals records for the administrative appeals filed by plaintiff and discovered that between January 1, 2000 and the filing of the instant action, plaintiff had not filed any administrative appeals regarding his treatment for Hepatitis C, abdominal pain or cancer. Loftin also declares that there were no administrative appeals filed at all against many of the defendants in this action, specifically, Drs. Calvo, Van Pelt, Trinh, Bui, Martin, Murdock, and Wong, and Melanie Hill-Culpepper, Harold Gosline, David Wigley, Clyde Theriot, Kersten Schneider, and Rosie Etter. Plaintiff does not dispute this declaration in his opposition papers. Instead, he states that the amended complaint lists and attaches all of the administrative appeals he filed. Included therein is an appeal directed to Dr. Van Pelt in November 2000 (log # CSQ-2-00-04441). In that appeal plaintiff requested a CT scan of his abdomen; in response, Dr. Van Pelt scheduled a CT scan and prescribed pain-relievers. Plaintiff alleges he pursued that appeal to the highest level. None of plaintiff's appeals, however, raise a claim that plaintiff was inadequately treated for Hepatitis C or cancer. Moreover, in the amended complaint, plaintiff admits he did not appeal to the highest level of appeal available to him. (See amended complaint at 26.)

Although it appears from plaintiff's allegations that plaintiff has exhausted his claim regarding the failure to treat his abdominal pain,*fn2 it is clear from the papers presented by the parties that plaintiff has failed to exhaust his claims that he has not been treated for Hepatitis C or cancer. A prisoner action asserting both exhausted and unexhausted claims must be dismissed without prejudice to refiling once plaintiff has presented each and every claim he wishes to assert in federal court through the Director's level of review. See Graves v. Norris, 218 F.3d 884, 885-86 (8th Cir. 2000) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a) requires that available administrative remedies be exhausted as to all claims brought in prisoner action); Rivera v. Whitman, 161 F. Supp.2d 337, 340-43 (D.N.J. 2001) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a), as well as the legislative intent and policy interests behind it, compel a "total exhaustion" rule); see Terrell v. Brewer, 935 F.2d 1015, 1018-19 (9th Cir. 1990) (holding same ride applicable to civil rights action brought by federal prisoner). Accordingly, this action will be dismissed without prejudice.*fn3

B. Discovery

In his opposition papers and in a separate motion, plaintiff claims that he needs discovery of additional medical records in order to oppose defendants' motion. The Court has already found, in an order dated November 21, 2002, that defendants provided plaintiff a copy of his prison medical file as an exhibit to their motion for summary judgment. Most of plaintiff's arguments are conclusory. He simply states that he needs additional records without identifying such records or indicating how such records would be of assistance to him. The only specific medical records he claims are missing are a document pertaining to a medical examination on August 25, 2000, and a document pertaining to a blood test on September 30, 1996. Defendants assert they have provided plaintiff with all the medical records in their possession. In any event, plaintiff does not argue, nor does it appear, that the documents he seeks are relevant to the issue of exhaustion. As noted, plaintiff states that he has provided the Court with documentation as to all of his administrative appeals. Consequently, any evidence plaintiff could obtain through discovery would not enable him to further demonstrate exhaustion or successfully oppose defendants' motion.


Because plaintiff has failed to exhaust his administrative remedies as required by 42 U.S.C. ยง 1997e(a), defendants' motion is GRANTED and plaintiff's claims are hereby DISMISSED without prejudice to plaintiff's refiling such claims in a new action in ...

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