United States District Court, S.D. California
October 4, 2005.
REMIGIO MAGANA, CDC #D-88908, Plaintiff,
G.J. GIURBINO, et al., Defendants.
The opinion of the court was delivered by: THOMAS WHELAN, District Judge
(1) GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT
PURSUANT TO FED.R.CIV.P.12(b); and
(2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO
DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6)
[Doc. No. 10]
I. Procedural History
On September 13, 2004, Plaintiff, an inmate currently
incarcerated at Calipatria State Prison in Calipatria,
California, and proceeding pro se, filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983. On November 22, 2004, this Court
granted Plaintiff's Motion to Proceed In Forma Pauperis and
directed the U.S. Marshal to effect service of Plaintiff's
Complaint pursuant to FED.R.CIV.P. 4(c)(2) and
28 U.S.C. § 1915(d). See Nov. 22, 2004 Order at 4.
Defendants Campos and Gonzales ("Defendants") have filed a
Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b),
42 U.S.C. § 1997e(a) and FED.R.CIV.P. 12(b)(6) [Doc. No. 10]. On July 20,
2005, Defendant Cerrillo, formerly designated "Jane Doe," filed a
Notice of Joinder to Defendants' Motion to Dismiss [Doc. No. 14].
Defendants claim that Plaintiff failed to exhaust his available
administrative remedies pursuant to 42 U.S.C. § 1997e(a) prior to
bringing the action currently before the Court. Defendants also
claim that Plaintiff failed to state either an Eighth or
Fourteenth Amendment claim against Defendants. On July 18, 2005,
Plaintiff requested an extension of time to file an Opposition to
the Defendants' Motion which the Court granted and permitted
Plaintiff to file his Opposition no later than September 2, 2005.
Plaintiff filed an Opposition on August 29, 2004 to which
Defendants filed a Reply on September 16, 2005.
II. Factual Allegations
On November 12, 2003, Plaintiff was incarcerated at Calipatria
State Prison ("Calipatria). See Compl. at 1-2. On that date he
slipped in water while he was working in the Facility "D"
Satellite Kitchen. Id. at 1. Plaintiff lost his footing and
severely injured his back. Id. at 2-3. Plaintiff was taken to
the prison's central infirmary where he was examined by Dr.
Sands. Id. at 3. Dr. Sands gave Plaintiff a seven day "lay
in"*fn1 and prescribed painkillers. Id. After the seven
days, Plaintiff informed Medical Technical Assistant
Cerrillo*fn2 and "Jane Doe" Nurse that he remained in
"excruciating pain" and needed more time off from work. Id.
Cerrillo and Jane Doe informed Plaintiff that he must continue to
work or he would be fired from his prison job which would result
in a loss of privileges. Id. Plaintiff's work duties included
lifting and carry heavy pots and pans. Id. The following day Plaintiff returned to the infirmary and
informed Cerrillo, as well as Jane Doe, that he was "in severe
pain, having back spasms and could barely lift his arms because
the pain was so debilitating." Id. MTA Cerrillo and Jane Doe
refused to allow Plaintiff to see the physician to request an
additional "lay in" and was told "you look fine, so you can
work." Id. at 3-4.
Plaintiff returned to his kitchen assignment where he was
observed by other inmates to be in pain. Id. at 4. When other
inmates attempted to assist Plaintiff, Defendant Campos ordered
Plaintiff to perform his work without additional assistance.
Id. The medical department had advised Defendants Campos and
Gonzales that Plaintiff had suffered a severe back injury. Id.
Plaintiff later informed his Correctional Counselor and
Lieutenant Ries of the situation. Correctional Counselor Brown
telephoned Campos and Gonzales in an attempt to allow Plaintiff
to have some time off. Id. However, Campos and Gonzales refused
to listen to Brown and informed him that if Plaintiff did not
return to work, he would be fired. Id. Plaintiff was later
issued a Rules Violation Report that resulted in a ten day
"confinement to quarters status" and a ninety day loss of phone
privileges due to Plaintiff's "refusing to perform assigned
duties." Id., Attachment to Compl., Loss of Privileges General
Chrono dated March 19, 2003.
Plaintiff filed an administrative grievance which was
"partially granted" on June 2, 2003. Id. at 5; Attachment to
Compl., First Level Appeal Response, CDC Log No. CAL-D-03-00615
dated June 2, 2003. Plaintiff claims to have submitted his
appeals to the Director's Level of Review but they were returned
to him with a stamp indicating "received without contents at San
Bernardino, CA." Id. at 5.
III. Defendants' Motion to Dismiss per FED. R. CIV.P.
A. Standard of Review
A motion to dismiss for failure to state a claim pursuant to
FED.R.CIV.P. 12(b)(6) tests the legal sufficiency of the claims
in the complaint. A claim can only be dismissed if it "appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984). The court must accept as true
all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must
construe the complaint in the light most favorable to the
plaintiff. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898
(9th Cir. 1986); Parks School of Business, Inc. v. Symington,
51 F.3d 1480, 1484 (9th Cir. 1995).
The court looks not at whether the plaintiff will "ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). Unless it appears beyond a doubt that the plaintiff can
prove no set of facts in support of his claim, a complaint cannot
be dismissed without leave to amend. Conley, 355 U.S. at 45-46;
see also Lopez v. Smith, 203 F.3d 1122, 1129-30 (9th Cir. 2000)
(en banc) (district court should grant leave to amend when
complaint fails to state a claim "unless it determines that the
pleading could not possibly be cured by the allegation of other
facts" and if "it appears at all possible that the plaintiff can
correct the defect") (citations omitted).
Where a plaintiff appears pro se, the court must construe the
pleadings liberally and afford the plaintiff any benefit of the
doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621,
623 (9th Cir. 1988). The rule of liberal construction is
"particularly important in civil rights cases." Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) ("Presumably
unskilled in the law, the pro se litigant is far more prone to
making errors in pleading than the person who benefits from the
representation of counsel."). In giving liberal interpretation to
a pro se civil rights complaint, however, a court may not "supply
essential elements of the claim that were not initially pled."
Ivey v. Bd. of Regents of the University of Alaska,
673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of
official participation in civil rights violations are not
sufficient to withstand a motion to dismiss." Id.; see also
Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th
Cir. 1984) (conclusory allegations unsupported by facts are
insufficient to state a claim under section 1983.) "The plaintiff
must allege with at least some degree of particularity overt acts
which defendants engaged in that support the plaintiff's claim."
Jones, 733 F.2d at 649 (internal quotation omitted). In addition, when resolving a motion to dismiss for failure to
state a claim, the court may not generally consider materials
outside the pleadings. Schneider v. California Dep't of
Corrections, 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998). "The
focus of any Rule 12(b)(6) dismissal . . . is the complaint."
Id. at 1197 n. 1. However, the court may consider documents or
exhibits "whose contents are alleged in a complaint and whose
authenticity no party questions." Branch v. Tunnell,
14 F.3d 449, 454 (9th Cir. 1994) overruled on other grounds by Galbraith
v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Hal
Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th
Cir. 1990); Stone v. Writer's Guild of Am. W. Inc.,
101 F.3d 1312, 1313-14 (9th Cir. 1996).
B. Eighth Amendment Inadequate Medical Treatment Claims
Defendants Campos and Gonzales have filed a Motion to Dismiss
seeking dismissal of Plaintiff's Complaint on the grounds that he
has failed to allege facts sufficient to an Eighth Amendment
claim. See Defs.' Mot. at 5. Defendant Cerrillo filed a joinder
to Defendants' Motion but failed to add any additional facts or
1. Standard of Review
A public official's "deliberate indifference to a prisoner's
serious illness or injury" violates the Eighth Amendment ban
against cruel and unusual punishment. Estelle v. Gamble,
429 U.S. 97, 105 (1976).*fn3 To state a claim, the prisoner must
allege facts which demonstrate that he was confined under
conditions posing a risk of "objectively, sufficiently serious"
harm and that prison officials had a "sufficiently culpable state of mind"
in denying him proper medical care. Wallis v. Baldwin,
70 F.3d 1074, 1076 (9th Cir. 1995) (internal quotations omitted). Thus,
there is both an objective and a subjective component to an
actionable Eighth Amendment violation. Clement v. Gomez,
298 F.3d 898, 904 (9th Cir. 2002).
Although the "routine discomfort inherent in the prison
setting" is inadequate to satisfy the objective prong of an
Eighth Amendment inquiry, see Johnson v. Lewis, 217 F.3d 726,
731 (9th Cir. 1999), the objective component is generally
satisfied so long as the prisoner alleges facts to show that his
medical need is sufficiently "serious" such that the "failure to
treat [that] condition could result in further significant injury
or the unnecessary and wanton infliction of pain." Clement,
298 F.3d at 904 (quotations omitted); Lopez, 203 F.3d at 1131-32;
see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir.
1994) ("serious" medical conditions are those a reasonable doctor
would think worthy of comment, those which significantly affect
the prisoner's daily activities, and those which are chronic and
accompanied by substantial pain).
However, the subjective component requires the prisoner to also
allege facts which show that the officials had the culpable
mental state, which is "`deliberate indifference' to a
substantial risk of serious harm." Frost v. Agnos,
152 F.3d 1124, 1128 (9th Cir. 1998) (quoting Farmer v. Brennan,
511 U.S. 825, 835 (1994)). "Deliberate indifference" is evidenced only
when "the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of the
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference." Farmer, 511 U.S. at 837.
Thus, because the indifference to medical needs also must be
substantial; inadequate treatment due to "mere medical
malpractice" or even gross negligence, does not amount to a
constitutional violation. Estelle, 429 U.S. at 106; Hallett v.
Morgan, 287 F.3d 1193, 1205 (9th Cir. 2002); Wood v.
Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). In other
words, an "official's failure to alleviate a significant risk
that he should have perceived but did not, . . . cannot . . . be
condemned as the infliction of punishment." Farmer,
511 U.S. at 838. "Rather the Eighth Amendment proscribes the `unnecessary and
wanton infliction of pain,' which includes those sanctions that
are `so totally without penological justification that it results
in the gratuitous infliction of suffering.'" Hoptowit v. Ray,
682 F.2d 1237, 1246 (9th Cir. 1982) (quoting Gregg v. Georgia,
428 U.S. 153, 173, 183 (1976)). "This is not an easy test for plaintiffs
to satisfy." Hallett, 287 F.3d at 1205.
2. Defendant Cerrillo
In his Complaint, Plaintiff alleges that he injured his back
and was taken to the Central Infirmary where he was examined by
Dr. Sands. See Compl. at 3. Dr. Sands provided Plaintiff with a
seven day "lay in" and prescribed pain medication. Id.
Plaintiff returned to the infirmary after the seven days had
expired and informed Defendant Cerrillo that he continued to be
in "excruciating pain." Id. Plaintiff requested an additional
"lay in" to recover from his back pain. Id. Defendant Cerrillo
alleging informed Plaintiff that he would receive no further "lay
in" and he must report to his prison job. Id. Plaintiff
returned to work but the following day Plaintiff reported to the
Medical Technician's Office and explained to Defendant Cerrillo
that he was in "severe pain, having back spasms, and could barely
lift his arms because the pain was so debilitating." Id.
However, Defendant Cerrillo again denied Plaintiff an additional
"lay in" and refused to allow Plaintiff to be examined by a
medical doctor. Id. at 3-4.
The Court finds these allegations sufficient to support both
the "objective" and "subjective" aspects of an Eighth Amendment
inadequate medical treatment claim. See Clement,
298 F.3d at 904. Defendant Cerrillo fails to argue that Plaintiff's medical
condition is not clearly and objectively "serious." See
Estelle, 429 U.S. at 105; Doty, 37 F.3d 546. In fact,
Defendant Cerrillo offers no facts or arguments relating to the
claims Plaintiff has made. The facts pertaining to Defendant
Cerrillo differ significantly than the facts pertaining to the
other Defendants who originally filed this motion, yet Cerrillo
has offered no additional analysis for the Court.
For these reasons, the Court DENIES Defendant Cerrillo's
Motion to Dismiss Plaintiff's inadequate medical treatment claims
pursuant to FED.R.CIV.P. 12(b)(6). 2. Defendants Gonzales and Campos
Plaintiff alleges that after he was denied an additional "lay
in," he was forced to return to his work assignment in the
prison's kitchen. See Compl. at 4. Plaintiff claims to have
told Defendants Gonzales and Campos, his supervisors, that he was
unable to work due to his back injury and showed them his medical
reports. Id. Defendants Gonzales and Campos allegedly forced
Plaintiff to "work through the pain" subjecting him to cruel and
unusual punishment in violation of his Eighth Amendment rights.
Id. at 4.
Estelle holds that an Eighth Amendment violation would be
established where "the indifference is manifested . . . by prison
guards intentionally denying or delaying access to medical care."
429 U.S. at 104-05; see also Carlson v. Green, 446 U.S. 14, 16
n. 1 (1980) (delay in treatment after asthma attack and delay in
transfer to hospital); Riley v. Rhay, 407 F.2d 496, 1497 (9th
Cir. 1969) (alleged failure to treat tuberculosis). Likewise, a
constitutional violation may exist where guards "intentionally
interfere with treatment once prescribed," Estelle,
429 U.S. at 105; Tolbert v. Eyman, 434 F.2d 625 (9th Cir. 1970) (prison
officials deny diabetic access to insulin). However, a section
1983 plaintiff must allege facts that show the seriousness of his
medical need as well as "the nature of the defendant's response
to that need." McGuckin, 974 F.2d at 1059. Only if these
elements are sufficiently pleaded to show "deliberate
indifference," may a prisoner state an Eighth Amendment claim.
Id. at 1060.
The Court finds that Plaintiff has failed to allege facts
sufficient to show that either Gonzales or Campos denied him
access to adequate medical treatment or delayed treatment. The
allegations in Plaintiff's Complaint fail to claim that either
Campos or Gonzales prevented Plaintiff from seeking medical
treatment for his back pain Accordingly, the Court GRANTS
Defendants Gonzales and Campos Motion to Dismiss Plaintiff's
Eighth Amendment claims pursuant to FED.R.CIV.P. 12(b)(6). IV. Defendants' Motion to Dismiss pursuant to
However, while the Court has found that Plaintiff has
adequately stated an Eighth Amendment claim against Defendant
Cerrillo, the Court must dismiss Plaintiff's entire action as
Defendants have shown that he has failed to exhaust all available
Defendants argue that Plaintiff has failed to exhaust all
available administrative remedies within the prison before filing
suit, and therefore, his complaint must be dismissed pursuant to
42 U.S.C. § 1997e(a) and FED.R.CIV.P. 12(b). Before the Prison
Litigation Reform Act ("PLRA") was enacted, prisoners challenging
conditions of confinement under 42 U.S.C. § 1983 were not
generally required to exhaust administrative remedies prior to
filing suit in district court. See Patsy v. Bd. of Regents,
457 U.S. 496, 500-01 (1982); Porter v. Nussle, 534 U.S. 516,
The PLRA amended 42 U.S.C. § 1997e(a), however, to provide that
"no action shall be brought with respect to prison conditions
under section 1983 of this title, or any 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); Porter, 534 U.S. at 517;
Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2002). The
Supreme Court has called "protecting administrative agency
authority and promoting judicial efficiency" the "twin purposes"
of administrative exhaustion. McCarthy v. Madigan,
503 U.S. 140, 145 (1992); see also Porter, 534 U.S. at 517 (noting that
corrective action taken in response to an inmate's grievance
might improve prison administration and satisfy the inmate and
thereby obviate the need for litigation, help to filter out
frivolous claims and provide the court with an administrative
record that clarifies the contours of the controversy) (citing
Booth, 532 U.S. at 737).
A. Standard for Motion to Dismiss
As noted above, Defendants' have filed and specifically request
that the Court rule on its motion to dismiss Plaintiff's
Complaint not only under FED.R.CIV.P.12(b)(6), but also under the
"non-enumerated" provisions of FED.R.CIV.P.12(b). The Ninth
Circuit has held that "failure to exhaust nonjudicial remedies is
a matter of abatement" not going to the merits of the case and is
properly raised pursuant to a motion to dismiss, including a
non-enumerated motion under FED.R.CIV.P. 12(b). See Ritza v. Int'l Longshoremen's &
Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988).
"Non-enumerated" Rule 12(b) motions are governed by the general
motion provisions in the federal rules, including FED.R.CIV.P.
43(e), which permits the hearing of motions based on facts
outside the record on affidavits submitted by the parties. Id.;
5A Wright & Miller, FEDERAL PRACTICE & PROCEDURE, § 1360 (2d ed.
The Ninth Circuit has also held that under the PLRA,
42 U.S.C. § 1997e(a)'s exhaustion requirement is an affirmative defense.
Wyatt, 315 F.3d at 1119. In Wyatt, the court stated that
district courts should look to documentation beyond the pleadings
in deciding motions to dismiss for failure to exhaust nonjudicial
remedies. Id. (citing Ritza, 837 F.2d at 369).
Here, Defendants raise a non-enumerated 12(b) motion, as
permitted by Ritza and Wyatt. Accordingly, the Court may look
to documents regarding exhaustion attached to Defendants' Motion.
B. Administrative Remedies and Booth
The administrative appeal system for inmates in the California
prison system is described in Title 15 of the California Code of
Regulations. "Any inmate or parolee under the [California
Department of Corrections'] jurisdiction may appeal any
departmental decision, action, condition or policy perceived by
those individuals as adversely affecting their welfare." CAL.
CODE REGS. tit. 15 § 3084.1(a). In order to exhaust
administrative remedies, a prisoner must first attempt to
informally resolve the problem with the staff member involved in
the action or decision being appealed." Id., § 3084.5(a). If
unsuccessful, the prisoner must then submit a formal appeal on an
inmate appeal from (a "CDC 602") to the institution's Appeals
Coordinator or Appeals Office. Id. § 3084.5(b). If the prisoner
is again unsuccessful, he or she must submit a formal appeal for
second level review, id. § 3084.5(c), which is conducted by the
institution head or designee. Id. § 3084.5(e)(1). The third or
"Director's Level" of review "shall be final and exhausts all
administrative remedies available in the Department [of
Corrections.]" See Cal. Dep't. of Corrections Operations
Manual, § 54100.11, "Levels of Review;" see also Barry v.
Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997); Irvin v.
Zamora, 161 F. Supp. 2d 1125, 1129 (S.D. Cal. 2001). In Booth v. Churner, 532 U.S. 731 (2001), the Supreme Court
resolved a split among the Circuits as to whether a state prison
grievance procedure which is incapable of providing money damages
is "available" under section 1997e(a) and therefore must be
exhausted before the prisoner files federal suit under
42 U.S.C. § 1983 seeking those damages. Looking both to the plain language
of the statute and to the legislative history behind the PLRA,
the Court held the exhaustion of "available" administrative
remedies under § 1997e(a) is required in prison condition cases
so long as the "prison administrative process [. . .] could
provide some sort of relief on the complaint stated" regardless
of whether that process can provide "the remedial action [the]
inmate demands." Booth, 532 U.S. at 734, 736. In other words,
no matter the specific "form of relief sought and offered through
administrative avenues," the prisoner must exhaust his claims
through the existing administrative processes, even if he seeks
money damages which are not authorized, so long as those
procedures have the "authority to provide any relief' or permit
prison officials to take "some action in response to the
complaint." Id. at 736, 741 nn. 4, 6.
Defendants seek dismissal of the entire action on grounds that
Plaintiff failed to exhaust all administrative remedies available
to him as set forth in CAL. CODE REGS., tit. 15 § 3084.1 to the
Director's Level of review as to any of the claims alleged in his
Complaint. See Defs' Mot. at 4-5; see also Defs.' Reply at
In support, Defendants attach the declarations of D. Porter,
Acting Chief of Inmate Appeals Branch, and H. Fasolo, Appeals
Coordinator for Calipatria State Prison. Attached to Plaintiff's
Complaint, as well as his Opposition to Defendants' Motion, is
the prison's responses to the administrative grievance filed by
Plaintiff and provided with the Log. No. CAL-D-03-00615.
Defendants have submitted the original grievance filed by
Plaintiff. See Fasolo Decl., Inmate/Parolee Appeal Form, Log
No. CAL-D-03-00615, dated February 6, 2003. While this grievance written entirely in Spanish, the Defendants have also
supplied a translation of Plaintiff's grievance into English.
Id., Translation by CCIP. Alaniz. In this grievance, Plaintiff
complains of having "lots of problems with cook Gonzales" and
Gonzales is "disrespectful." Id. There is no mention in this
grievance of any of the claims set forth in Plaintiff's
Complaint. Plaintiff does not mention any issues regarding a
medical condition nor does he state that Defendant Gonzales
forced him to work despite his serious medical issues.
In his Opposition, Plaintiff does not argue that there were any
other grievances filed by him that addressed the issues in his
Complaint, instead he maintains that his "access to courts is
meaningless if he cannot obtain judicial review on the merits
without first exhausting his administrative remedies when these
remedies are serious flawed." See Pl.'s Opp'n at 6. Booth
makes clear that to the extent Plaintiff seeks to be excepted
from 42 U.S.C. § 1997e(a)'s mandatory exhaustion requirement
because the CDC 602 procedures set forth in CAL. CODE REGS., tit.
15, § 3084.1, were ineffective, or that prison administrators
were nonresponsive, this Court no longer has discretion to excuse
Congress's mandate that he exhaust, even though he may have found
the available administrative procedure futile. See Booth,
532 U.S. at 741 n. 6 ("[W]e will not read futility or other
exceptions into statutory exhaustion requirements where Congress
has provided otherwise."); McCarthy v. Madigan, 503 U.S. 140,
144 (1991); McKinney, 311 F.3d 1198, 1199 (9th Cir. 2003)
(noting that under 42 U.S.C. § 1997e(a), exhaustion is a
"mandatory" pre-condition to suit)).
Therefore, the Court finds that because Defendants have
sufficiently shown that Plaintiff failed to properly exhaust the
administrative remedies set forth on CAL. CODE REGS., tit. 15, §
3084.5 as to any of the claims asserted in his Complaint, their
Motion to Dismiss per FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a)
is GRANTED and this action must be dismissed without prejudice
on this ground. See Wyatt, 315 F.3d at 1120 ("If the district
court concludes that the prisoner has not [satisfied
42 U.S.C. § 1997e(a)'s exhaustion requirement], the proper remedy is
dismissal of the claim without prejudice."). V. Conclusion
For all the reasons set forth above, IT IS HEREBY ORDERED
Defendants' Motion to Dismiss Plaintiff's Complaint is
GRANTED pursuant to FED.R.CIV.P. 12(b) [Doc. No. 10] and that
the action is DISMISSED WITHOUT PREJUDICE for failure to
exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a).
The Clerk shall close the file.
IT IS SO ORDERED.
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