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
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,
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.
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