The opinion of the court was delivered by: MARTIN JENKINS, District Judge
Plaintiff, a California prisoner proceeding pro se, filed civil
rights complaint pursuant to 42 U.S.C. § 1983 against several
municipal entities and officials of Santa Clara County, as well as
various medical employees of the Valley Medical Center ("VMC"). Plaintiff
claimed that the failure to provide him with shoulder surgery while he
was housed at the Santa Clara County Jail amounted deliberate
indifference to his serious medical needs in violation of the Eighth
Amendment. After an initial review of the complaint, the Court found that
it stated cognizable claims against the VMC medical employees
(hereinafter "Defendants"), but not against the other defendants.
Defendants filed a motion for summary judgment in which they contend that
plaintiff failed to exhaust his available administrative remedies and,
alternatively, that he has failed to create a genuine issue of material
fact that his medical care was constitutionally deficient. Plaintiff has
filed an opposition, defendants have filed a reply, and plaintiff has
filed both an "answer" and an "amended answer" to the reply.
Defendants argue that plaintiff's claims are barred because he has
failed to exhaust his administrative remedies. 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). 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). Exhaustion is an affirmative defense as to which defendants have
the burden of proof. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th
Defendants present evidence, undisputed by plaintiff, describing the
administrative remedies available to inmates of the Santa Clara County
Jail, such as plaintiff. The Santa Clara County Department of Corrections
provides a three-step administrative grievance procedures for all
inmates, which is set forth as Policy Number 14.04 of the Policy Manual
made available to all jail inmates. The three levels of administrative
review are: (1) informal resolution, (2) submission of a written
grievance form to the Grievance Coordinator, and (3) a written letter
appealing the decision to the Facility Commander. Plaintiff does not
dispute that these three levels of administrative review were "available"
to him. As a result, he was required to assert proceed through all three
of these steps in order to properly exhaust his administrative remedies
within the meaning of § 1997e(a).
Defendants have filed a declaration of Lieutenant Vasquez, the official
at the Santa Clara County Department of Corrections who logs
administrative grievances filed by inmates. Vasquez states that his
search of the inmate records revealed that plaintiff did not file any
grievances until April 2003, after he commenced this lawsuit. Defendants
are correct that these grievances do not satisfy the § 1997e(a)
exhaustion requirement because a prisoner must exhaust his available
administrative remedies before he or she filed suit. See
McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (exhaustion
during pendency of suit does not satisfy § 1997e(a)).
However, plaintiff provides two grievance forms which he filed in
September and October 2002, prior to this lawsuit, seeking medical
treatment for his shoulder. See Plaintiff's Opp., Exh. D.*fn1
These grievances demonstrate that plaintiff proceeded to the second level
of available administrative remedies, but not to the next, highest level
of administrative review available to him. Vasquez states that the
records indicate that plaintiff never wrote to the Facility Commander
appealing the denial of the medical care he sought in his grievances.
Plaintiff does not dispute the fact that he failed to present his claims
to the Facility Commander, nor does he contend that he exhausted all of
his available remedies. Instead, he explains that he decided that
"nothing would be done and a lawsuit was the proper venue" to seek
further medical care. Plaintiff's assumption that seeking an
administrative remedy from the Facility Commander would be unsuccessful
does not excuse his obligation to exhaust. See Booth, 532 U.S.
at 741 n.6 (courts should not read "futility or other exceptions" into
§ 1997e(a)). Plaintiff must present his claims through all levels of
administrative review available at the Santa Clara Department of
Corrections, including in a written letter to the Facility Commander,
before raising them in federal court. The evidence provided by defendants
demonstrates that plaintiff has not
done so, and plaintiff presents no evidence to the contrary. As a
result, the Court concludes that plaintiff has failed to exhaust his
available administrative remedies.*fn2
In light of the foregoing, this action is DISMISSED without prejudice
to refiling after plaintiff has exhausted all of his available
administrative remedies. See Wyatt, 315 F.3d at 1120 (if the
court concludes that the prisoner has not exhausted nonjudicial remedies,
the proper remedy is dismissal without prejudice).
Defendants' motion for summary judgment is GRANTED in part. Plaintiff's
and defendants' motions to strike are DENIED.
The clerk shall close the file and terminate docket numbers 14, 30, 35
and any other pending motions.
[EDITORS' NOTE: THIS PAGE CONTAINED "CERTIFICATE OF SERVICE"]