The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Latwahn McElroy ("plaintiff), currently incarcerated at Salinas
Valley State Prison ("SVSP"), has filed this pro se civil rights
complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he was
exposed to harmful second-hand tobacco smoke, and that he has not
received care for an ulcer and anxiety attacks. After reviewing the
initial complaint, the Court found that the allegations stated a
cognizable claim for violation of plaintiff's Eighth Amendment rights.
Defendants have filed a motion to dismiss the complaint for failure to
exhaust administrative remedies. Plaintiff has filed an opposition, and
defendant has filed a reply.
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). In
deciding an unenumerated motion under Rule 12(b) to dismiss for failure
nonjudicial remedies, the Court may look beyond the pleadings and
decide disputed issues of fact. Id. at 1119-20.*fn1
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 So.
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). Exhaustion is a
prerequisite to all prisoner lawsuits concerning prison life, whether
such actions involve general conditions or particular episodes, whether
they allege excessive force or some other wrong, and even if they seek
relief not available in grievance proceedings, such as money damages.
Id. at 988, 992; Booth v. Churner,
532 U.S. 731, 741(2001).
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.
Defendants have filed a declaration of V. Duran ("Duran"), an office
assistant at SVSP, who identifies herself as "a duly authorized
custodian" of the prison records of SVSP inmates. Duran attaches to her
declaration plaintiff's "central file" which, according to defendants,
includes all of plaintiff's administrative grievances. A review of these
grievances indicates that none of them concern the claims plaintiff
raises here regarding the effects of second-hand tobacco smoke and the
lack of medical attention for an ulcer and anxiety attacks. In his form
complaint, plaintiff circles the answer "yes" to the question of whether
he completed the administrative grievance procedure regarding the claims
in his complaint. Plaintiff does not list any grievance log numbers or
attach any grievances to his complaint to support his statement in his
complaint that he has exhausted his administrative remedies. Plaintiff
also has not filed any evidence in response to defendants' motion
demonstrating that he has exhausted his claims in response to defendants'
motion to dismiss. Nor does he dispute defendants' assertion that
grievances are attached to Duran's declaration, none of which address
plaintiff's claims, consist of all of the administrative grievances
plaintiff has filed. The evidence provided by defendants demonstrates
that plaintiff has not exhausted his available administrative remedies
with respect to the claims in the complaint, and this evidence is
uncontraverted by plaintiff. As a result, the Court concludes that
plaintiff has failed to exhaust his available administrative remedies.
For the foregoing reasons, defendants' motion to dismiss the complaint
is GRANTED, and this action is DISMISSED without prejudice to refiling
after all available administrative remedies have been exhausted. This
order terminates docket number 13.
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