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STEVEN V BANKS v. HENNESSEY

November 23, 2005.

STEVEN V BANKS, Plaintiff(s),
v.
MICHAEL HENNESSEY, Sheriff, et al, Defendant(s).



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

ORDER GRANTING DEFENDANTS' MOTION FOR DISMISSAL/SUMMARY JUDGMENT

While plaintiff was a pretrial detainee at the San Francisco County Jail, he filed the instant pro se civil rights action under 42 USC § 1983 alleging that he is a "transgender/transsexual" inmate under constant fear of assault because jail officials refuse to house him in the sexually vulnerable inmate housing unit known as SXI. According to plaintiff, he expressed his safety concerns to two deputies, but they explained that, under jail policy and practice, he would be moved only if he is first assaulted. Plaintiff seeks an order compelling jail officials to move him to the SXI unit, and damages from the San Francisco Sheriff's Department ("SFSD") for violation of his due process right to personal security as a result of SFSD's unlawful policy and practice. Per order filed on July 21, 2004, the court found that plaintiff's allegations, liberally construed, stated a colorable claim for injunctive relief under § 1983 for deliberate indifference to safety, which would be served on Sheriff Michael Hennessey. The court also found that the allegations appeared to state a colorable claim for local government/municipal liability under § 1983 against SFSD. 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), that plaintiff's claim for injunctive relief was rendered moot by his conviction and transfer to state prison, 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: (1) plaintiff failed to exhaust administrative remedies before filing suit, as required by 42 USC § 199e(a); (2) plaintiff's claim for injunctive relief was rendered moot by his conviction and transfer to state prison; and (3) there is insufficient evidence to establish a violation of the Fourteenth Amendment at trial.

  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 prisoner action request and 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 plaintiff filed a prisoner action request and a grievance, he did not appeal their denial to the custody division commander. Plaintiff's contention that he was not required to appeal because the jail did not act on his grievance is without merit because the evidence makes clear that his grievance was reviewed and denied by jail staff on February 4, 2004. The evidence further shows that shortly after his grievance was denied, plaintiff chose to file the instant action rather than appeal the denial of his grievance to the custody division commander. Defendants' motion to dismiss for failure to exhaust administrative remedies before filing ...


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