The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
Joseph Richard Scott, formerly an inmate at San Quentin State
Prison, filed this pro se civil rights action under
42 U.S.C. § 1983. The complaint is now before the court for initial review
under 28 U.S.C. § 1915A.
Scott's complaint alleged the following about medical care he
received while in custody at San Quentin State Prison: Scott
received what he thought was a spider bite on May 19, 2005.
Although he made numerous requests for medical care and although
his arm became very swollen, he was not allowed to see a doctor
until several days later. He was seen by Dr. Bui on May 24, and
Dr. Bui told a nurse to give him a shot of some kind of medicine.
Scott did receive some medicine, but a medical slip was discarded
into the trash. Despite receiving shots for his arm problem, the
arm continued to cause him pain and continued to swell. On May
28, he was seen by Dr. Bui and another doctor; they sent him to an emergency room in
a hospital in Novato. He was treated at the hospital, where he
remained for seven days. When his wound was drained at the
hospital, "a river of pus and poison flowed out." Complaint, p.
9. He received antibiotics and further treatment in the hospital.
He then was returned to San Quentin, where his medicine arrived
two days late and he was deprived of a scheduled dressing change
by unidentified persons. He alleged that he was "filing this suit
due to serious malpractice/neglect by unprofessional and
irresponsible person[s] here at San Quentin." Id. He seeks
money damages. In his complaint, Scott alleged that he did not
exhaust administrative remedies and was not required to do so
"because a criminal act was committed against me. So, no
administrative process is required by law (`medical
malpractice')." Id. at 2.
After he filed his complaint, Scott sent a letter informing the
court that he was to be paroled on August 12, 2005.
A federal court must engage in a preliminary screening of any
case in which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity. See
28 U.S.C. § 1915A(a). In its review the court must identify any cognizable
claims, and dismiss any claims which are frivolous, malicious,
fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief.
See id. at 1915A(b)(1),(2). Pro se pleadings must be
liberally construed. See Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the Constitution
or laws of the United States was violated, and (2) that the
violation was committed by a person acting under the color of
state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
The complaint has two problems. The first problem with the
complaint is that Scott did not exhaust administrative remedies
before filing the complaint. "No 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. Despite Scott's
assertion otherwise, the requirement that a prisoner exhaust his
administrative remedies is not excused when an inmate complains
of criminal conduct or medical malpractice. Exhaustion of all
"available" remedies is mandatory. Porter v. Nussel,
534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 739-40 & n. 5
(2001). Even when a prisoner seeks relief not available in
grievance proceedings, notably money damages, exhaustion is a
prerequisite to suit. Id. at 741. The State of California
provides its prisoners and parolees the right to appeal
administratively "any departmental decision, action, condition or
policy perceived by those individuals as adversely affecting
their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). In
order to exhaust available administrative remedies within this
system, a prisoner or parolee must proceed through several levels
of appeal: (1) informal resolution, (2) formal written appeal on
a CDC 602 inmate appeal form, (3) second level appeal to the
institution head or designee, and (4) third level appeal to the
Director of the California Department of Corrections. See id.
§ 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal.
1997). Scott's concession that he did not exhaust his
administrative remedies before filing this action permits the
dismissal of this action. See Wyatt v. Terhune,
315 F.3d 1108, 1120 (9th Cir. 2003) ("prisoner's concession to
nonexhaustion is a valid ground for dismissal, so long as no
exception to exhaustion applies"). The fact that Scott was
paroled after the complaint was filed does not excuse the
exhaustion requirement because parolees, like prisoners, have
administrative remedies available to them. Section 3084.1(a) of
Title 15 of the California Code of Regulations provides for
administrative appeals by "[a]ny prisoner or parolee." Because
Scott has administrative remedies available to him as a parolee,
and affirmatively pled that he did not exhaust the administrative
remedies available to him, this action cannot be brought in
federal court at this time. The action must be dismissed without
prejudice to Scott filing a new action after he exhausts his
The second problem with the complaint is that Scott has not
adequately plead a claim under 42 U.S.C. § 1983, the civil rights
statute under which most prisoners proceed. A claim for inadequate medical care in prison may be pursued under § 1983,
but only where that care or lack of care have violated the Eighth
Amendment's prohibition of cruel and unusual punishment. In the
medical care context, a prisoner alleging an Eighth Amendment
violation must allege both (1) a serious medical need and (2)
deliberate indifference to that need by prison officials. See
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992). A
medical need is serious if the failure to treat the inmate's
condition could result in further significant injury or the
"unnecessary and wanton infliction of pain." Id. at 1059
(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A
defendant acts with deliberate indifference when he both knows of
and disregards a serious medical need. See Farmer v. Brennan,
511 U.S. 825, 837 (1994).
Scott's complaint specifically alleged that defendants were
negligent and engaged in malpractice in their care for his
medical problem. However, negligence is not actionable under §
1983. See Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir.
1998); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
If Scott wants to pursue his medical care claim in federal court,
he must (after exhausting administrative remedies) file a new
complaint that alleges that each defendant acted with deliberate
indifference to his serious medical needs if he believes that to
be true. This normally would be a pleading problem that could be
cured by an amended complaint; however, leave to amend will not
be permitted because even if an amended complaint was filed, the
exhaustion problem discussed in the preceding paragraph would
remain as a bar to this action.
If, instead of attempting to pursue a claim for an Eighth
Amendment violation, Scott wants to pursue a negligence claim
which is considerably easier to prove he should dismiss this
action and file an action in state court. Of course, he may need
to comply with the California Tort Claims Act and present his
claims to the State Board of Control before he files an action ...