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February 17, 2004.

COUNTY OF SANTA CLARA, et. al., Defendants

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. Page 2


  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 Cir. 2003).

  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). Page 3

  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 Page 4 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.




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