The opinion of the court was delivered by: DANA M. SABRAW, District Judge
ORDER: (1) ADOPTING IN PART MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION; (2) GRANTING DEFENDANTS'
MOTION TO DISMISS; AND (3) DISMISSING ACTION WITHOUT
On March 6, 2003, Plaintiff Mubarak Mubarak, a state prisoner
proceeding pro se and in forma pauper is, filed his
Third Amended Complaint ("TAG") pursuant to 42 U.S.C. § 1983,
alleging civil rights violations against Defendants. On August 19, 2003,
Defendants responded with a Motion to Dismiss the TAC for Failure to
Exhaust Administrative Remedies and to Strike the complaint and its
prayer for punitive damages and non monetary relief. Plaintiff
did not file an Opposition. The motion was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Civ. L.R.
72.3, for a Report and Recommendation ("Report").
In compliance with Wyatt v. Terhune, 315 F.3d 1108, 1120 n.
14 (9th Cir. 2003), the Honorable James F. Stiven, United States
Magistrate Judge, issued an Order on September 30, 2003, giving Plaintiff
notice of his possible failure to exhaust his third cause of action, and
requiring Plaintiff to submit affidavits to that effect. [Doc. 29.]
Originally, Plaintiff had until October 24, 2003, to respond to this
Order. Plaintiff after receiving two extensions on this
deadline responded on February 18, 2004.
On February 23, 2004, Magistrate Judge Stiven issued his Report,
recommending that the Court grant in part and deny
in part Defendants' motion to dismiss and to strike.
Judge Stiven recommended the Court dismiss the third cause of action in
the TAC without prejudice for failure to exhaust administrative remedies
pursuant to the Prison Litigation Reform Act of 1997 ("PLRA"), as set
forth in 42 U.S.C. § 1997e. Judge Stiven further recommended the
Court deny the motion to dismiss claims One, Two, and Four, and deny the
motion to strike Plaintiff's prayer for punitive damages and
injunctive/declaratory relief. In addition, Judge Stiven recommended
Plaintiff's request for transfer to federal custody and transfer closer
to his home be stricken, and that judicial notice should be taken of the
exhibits attached to Defendants' motion. Finally, as Plaintiff returned a
signed affidavit verifying his Third Amended Complaint on February 18,
2004, Judge Stiven recommended the Motion to Strike the Complaint be
denied as moot.
Defendants Objected to the Report on March 12, 2004. Plaintiff Objected
on March 15, 2004.
Based on this Court's review of Judge Stiven's Report and
Recommendation, the pleadings, and the relevant authorities, the Court
ADOPTS Judge Stiven's recommendation regarding Plaintiff's failure to
exhaust his administrative remedies. Because Plaintiff has not exhausted
all his claims before bringing suit as required by the PLRA
the Third Amended Complaint is DISMISSED without prejudice in
its entirety. In light of this ruling, the Court declines to address
the other issues raised by Defendants' motion to dismiss and to strike.
Plaintiff's first two claims concern events that occurred on July 9,
2000, when Defendant Floras allegedly beat Plaintiff in his cell. After
the alleged beating, Plaintiff avers Defendants Hewitt and Ketcham
slammed his face into the floor when he refused to remove his pants in
front of a female medical technician because of his Islamic faith.
Plaintiff also complains Defendants Hewitt, Ketcham and Vogt all filed
false reports to cover up these physical attacks,
Plaintiff's third cause of action involves the events of September 22,
2000, when Defendant Sosa purportedly beat Plaintiff's arm while
Defendant Aboytes watched. The fourth cause of action is essentially a
reiteration of Plaintiff's first two claims, providing an overview of the
alleged Constitutional violations.
The Court reviews a Magistrate Judge's Report and Recommendation, if
objected to, de novo. See Hunt v. Pyler, 336 F.3d 839, 844 (9th
Cir. 2003) (quoting McKeever v. Block. 932 F.2d 795, 798 (9th
Cir. 1991)). As discussed below, the Court DISMISSES Plaintiff's action
without prejudice for failing to completely exhaust his administrative
A. Failure to Exhaust Third Claim
The Court agrees with Judge Stiven's conclusion that Plaintiff has
failed to exhaust his third cause of action, as required by
42 U.S.C. § 1997(e)(a). (Report at 5-7.) Nowhere in his TAC or his Objections
to the Motion to Dismiss did Plaintiff submit any documentation or
evidence that this claim had been considered by CDC officials at any
level of administrative review. ...