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BANKS v. SAN FRANCISCO SHERIFF'S DEPARTMENT

November 23, 2005.

STEVEN V BANKS, Plaintiff(s),
v.
SAN FRANCISCO SHERIFF'S DEPARTMENT, et al, Defendant(s).



The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER GRANTING DEFENDANTS' MOTION FOR DISMISSAL/SUMMARY JUDGMENT

Plaintiff, a prisoner at Avenal State Prison, filed the instant pro se civil rights action for damages under 42 USC § 1983 alleging that on or about April 2, 2003, while detained at the San Francisco County Jail, he was assaulted by southern Mexican inmates as a result of the San Francisco Sheriff's Department's policy of housing southern Mexicans ("Sureños") and African Americans together at County Jail # 1 despite their documented animosity towards each other. Plaintiff, who is African-American, specifically alleges that Captain Butler and Sergeant Tilden were deliberately indifferent to his safety because they failed to segregate him and other African-American inmates from Sureño inmates despite his warning them that the two groups did not get along. Per order filed on August 5, 2004, the court found that plaintiff's allegations, liberally construed, stated a cognizable claim under § 1983 for deliberate indifference to safety and ordered the United States Marshal to serve Butler, Tilden and the San Francisco Sheriff's Department. Defendants now move for summary judgment on the ground that there are no material facts in dispute and that they are entitled to judgment as a matter of law. Defendants specifically argue that plaintiff failed to exhaust administrative remedies before filing suit, as required by 42 USC § 199e(a), and that there is insufficient evidence to establish a violation of the Fourteenth Amendment. Plaintiff has filed an opposition and defendants have filed a reply.

DISCUSSION

  A. Standard of Review

  Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed R Civ P 56(c). Material facts are those which may affect the outcome of the case. Anderson v Liberty Lobby, Inc, 477 US 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

  The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp v. Cattrett, 477 US 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the opposing party will have the burden of proof at trial, as is the case here, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.

  Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed R Civ P 56(e). If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law." Celotex Corp., 477 US at 323.

  B. Analysis

  Defendants argue that they are entitled to summary judgment because plaintiff failed to exhaust administrative remedies before filing suit, as required by 42 USC § 199e(a), and because there is insufficient evidence to establish that defendants were deliberately indifferent to plaintiff's safety in violation of the Fourteenth Amendment.

  1. Nonexhaustion

  The Prison Litigation Reform Act of 1995 amended 42 USC § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 USC § 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 USC § 1997e(a). Although once within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Porter v. Nussle, 534 US 516, 524 (2002). All available remedies must now be exhausted; those remedies "need not meet federal standards, nor must they be `plain, speedy, and effective.'" Id (citation omitted). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id; Booth v. Churner, 532 US 731, 741 (2001). Similarly, exhaustion is a prerequisite to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 US at 532.

  Nonexhaustion under § 1997e(a) is an affirmative defense. Wyatt v. Terhune, 315 F3d 1108, 1119 (9th Cir 2003). It should be treated as a matter of abatement and brought in an "unenumerated Rule 12(b) motion rather than [in] a motion for summary judgment." Id (citations omitted). Defendants' motion for summary judgment on the ground that plaintiff failed to exhaust available administrative remedies before filing suit accordingly will be construed as an unenumerated Rule 12(b) motion to dismiss.

  In deciding a motion to dismiss for failure to exhaust administrative remedies under § 1997e(a), the court may look beyond the pleadings and decide disputed issues of fact. Id at 1119-20. If the court concludes that the prisoner has not exhausted the appropriate administrative process, the proper remedy is dismissal without prejudice. Id at 1120.

  Here, defendants set forth evidence showing that in order to exhaust his administrative remedies at the jail, plaintiff was required to file a grievance and, if unsatisfied with the result, appeal the issue to the custody division commander. They argue that plaintiff did not exhaust his administrative remedies because the evidence shows that although ...


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