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MUBARAK v. CALIFORNIA DEPT. OF CORRECTIONS

May 3, 2004.

MUBARAK MUBARAK, Plaintiff
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants



The opinion of the court was delivered by: DANA M. SABRAW, District Judge

AMENDED ORDER: (1) ADOPTEVG — IN — PART MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; (2) GRANTING DEFENDANTS' MOTION TO DISMISS; AND (3) DISMISSING ACTION WITHOUT PREJUDICE
Currently pending before this Court is a motion by Defendants to dismiss Plaintiff Mubarak Mubarak's Third Amended Complaint, pursuant to Fed.R.Civ.P. 12(b). Because Plaintiff is a state prisoner bringing claims for relief under 42 U.S.C. § 1983, the Prison Litigation Reform Act of 1997 ("PLRA"), applies to this case. The Court holds that the PLRA requires "total exhaustion" of administrative remedies before bringing suit. The Court also finds that Plaintiff has failed to exhaust his available administrative remedies in relation to his third claim. Consequently, the action is DISMISSED without prejudice. I.

FACTUAL AND PROCEDURAL SUMMARY

  On March 6, 2003, Plaintiff Mubarak Mubarak, a state prisoner proceeding pro se and in forma pauperis, filed his Third Amended Complaint ("TAC") pursuant to 42 U.S.C. § 1983, alleging civil rights violations against Defendants. Plaintiff's first two claims concern events that occurred on July 9, 2000, when Defendant Flores 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.

  On August 19, 2003, Defendants responded with a Motion to dismiss the TAC for failure to exhaust administrative remedies and to strike the TAC 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. 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 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, injunctive relief, and 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 TAC on February 18, 2004, Judge Stiven recommended the Motion to strike the TAC 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, the pleadings, and relevant authorities, the Court ADOPTS Judge Stiven's recommendation regarding Plaintiff's failure to exhaust his administrative remedies for his third claim. However, as to Judge Stiven's further conclusion that Plaintiff be allowed to proceed with the remaining three claims, the Court declines to follow this recommendation. The Court holds that the PLRA requires "total exhaustion" of administrative remedies before bringing suit. For this reason, the TAC 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.

  II.

  DISCUSSION

  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 totally exhaust his administrative remedies. 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. § 1997e(a). 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. ...


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