IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 12, 2008
IVAN TURNER, PLAINTIFF,
M.C. KRAMMER, ET AL., DEFENDANTS.
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On July 2, 2008, defendant Dunlap moved to dismiss this action, arguing that plaintiff failed to exhaust available administrative remedies prior to bringing suit. Plaintiff has filed an opposition to defendant's motion. Defendant has filed a reply. Plaintiff has also filed an unauthorized response to defendant's reply. See Local Rule 78-230(m).
Plaintiff is proceeding on an amended complaint against defendant John T. Dunlap. In his amended complaint, plaintiff alleges that the defendant was deliberately indifferent to his medical needs in violation of the Eighth Amendment. Specifically, plaintiff alleges that defendant Dunlap failed to provide him with adequate medical care for a bullet that was lodged in his arm. According to plaintiff, he repeatedly complained to defendant Dunlap about a burning pain in his elbow, but the defendant told him that the bullet was nothing to be concerned about because it was lodged between flesh and nerve. Plaintiff alleges that defendant Dunlap waited more than eighteen months before he requested a referral for plaintiff to see a neurosurgeon. Plaintiff notes that he eventually went to U.C. Davis to have the bullet removed. However, by this time, plaintiff alleges that he had lost all feeling and strength in his right hand and arm.
THE PARTIES' ARGUMENTS
I. Defendant's Motion
Counsel for defendant Dunlap argues that this action should be dismissed because plaintiff did not exhaust his inadequate medical care claim. Specifically, counsel argues that plaintiff filed two relevant grievances during the time defendant Dunlap was allegedly deliberately indifferent to plaintiff's medical needs. First, plaintiff filed Appeal 06-00705, requesting an MRI for spinal pain. Counsel argues that this appeal does not concern the allegations in plaintiff's complaint in this action, and in any event, plaintiff only pursued this appeal through the second level of review. Second, plaintiff filed Appeal 06-01444, concerning his decreasing ability to use his right arm as a result of lead poisoning and the bullet in his arm. Counsel argues that plaintiff withdrew this appeal on November 17, 2006. (Def.'s Mot. to Dismiss at 3-4; Casey Decl 1-2; Grannis Decl. 1-2.)
Counsel for defendant concludes that plaintiff failed to exhaust administrative remedies before bringing this suit. Accordingly, counsel concludes that the court should grant the instant motion to dismiss. (Def.'s Mot. to Dismiss at 4-5.)
II. Plaintiff's Opposition
Plaintiff has filed an opposition to defendant's motion to dismiss arguing that the motion is untimely and that the court should stay this action to allow him to exhaust his administrative remedies. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 1.) First, plaintiff argues that defendant failed to file the instant motion to dismiss within the time frame allowed by Local Rule 78-230(m). Plaintiff argues that defendant's failure to file a timely motion should be considered failure to prosecute, and the court should proceed straight to the merits of plaintiff's claims. (Id. at 5-6.) Second, plaintiff argues that defendant violated his rights under the Eighth Amendment and that fundamental fairness demands that the court stay this action while he exhausts administrative remedies. Plaintiff maintains that a jury should be allowed to determine the proper relief in this matter. (Id. at 6-8.) Plaintiff has attached to his opposition correspondence from prison officials that shows that he has recently filed administrative grievances regarding his medical needs. (Id., Ex. A.)
III. Defendant's Reply
In reply, counsel for defendant argues that the instant motion to dismiss is timely.
The Waiver of Service of Summons defendant returned states that he had 60 days after May 6, 2008 to file a response to plaintiff's amended complaint. Defendant timely filed the instant motion to dismiss on July 2, 2008. As to the merits of the pending motion, counsel for defendant Dunlap argues that exhaustion must be complete before filing suit. Where, as here, plaintiff has not fully exhausted his claims before filing his suit, the court must dismiss his complaint without prejudice. (Def.'s Reply at 2.)
I. Legal Standards Applicable to a Motion to Dismiss
Pursuant to Non-Enumerated Rule 12(b) By the Prison Litigation Reform Act of 1995 (PLRA), Congress amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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(a). The exhaustion requirement "applies 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 v. Nussle, 534 U.S. 516, 532 (2002).
The Supreme Court has ruled that exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). The Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. Id. at 741 n.6. Because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 83 (2006).
In California, prisoners may appeal "any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Most appeals progress from an informal review through three formal levels of review. See Cal. Code Regs. tit. 15, § 3084.5. A decision at the third formal level, also referred to as the director's level, is not appealable and will conclude a prisoner's administrative remedy. Cal. Code Regs. tit. 15, §§ 3084.1(a) and 3084.5(e)(2). A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available before filing suit. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).
As noted above the PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative defense that a defendant may raise in a non-enumerated Rule 12(b) motion. Jones v. Bock, 549 U.S. 199, ___, 127 S.Ct. 910, 921 (2007) ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints."); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir.), cert. denied sub nom. Alameida v. Wyatt, 540 U.S. 810 (2003). The defendant bears the burden of raising and proving the absence of exhaustion. Wyatt, 315 F.3d at 1119. "In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. "[I]f the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust--a procedure closely analogous to summary judgment--then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record."*fn1 Id. at 1120 n.14. When the district court concludes that the prisoner has not exhausted administrative remedies, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120. See also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005), cert. denied ___ U.S. ___, 127 S.Ct. 1212 (2007). On the other hand, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 127 S.Ct. at 924.
In this case, the court finds that plaintiff failed to exhaust his inadequate medical care claim against defendant Dunlap before bringing this action. Specifically, plaintiff failed to pursue any administrative grievance through the director's level of review regarding defendant Dunlap's alleged deliberate indifference to his medical needs. See 42 U.S.C. § 1997e(a) ("[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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."). Plaintiff filed two grievances during the relevant time period he sought and received care from defendant Dunlap. However, plaintiff pursued Appeal 06-00705 only through the second level of review and voluntarily withdrew Appeal 06-01444 before reaching the director's level of review. (Casey Decl. at 2 & Exs. A & B.) Although plaintiff has recently filed administrative grievances with respect to his medical treatment, it is well established that a court is required to dismiss an action without prejudice where a prisoner fails to exhaust administrative remedies prior to filing suit. See Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (a prisoner "may initiate litigation in federal court only after the administrative process ends and leaves his grievances unredressed"); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (rejecting prisoner's request for a stay so that he could pursue exhaustion of administrative remedies).
As noted above, the defendant bears the burden of raising and proving the affirmative defense of failure to exhaust administrative remedies. Jones, 127 S.Ct. at 921; Wyatt, 315 F.3d at 1117-19 & nn.9 & 13. Defendant Dunlap has carried that burden in this instance and therefore, the instant motion to dismiss should be granted.*fn2
In accordance with the above, IT IS HEREBY RECOMMENDED that:
1. Defendant Dunlap's July 2, 2008 motion to dismiss be granted; and
2. This action be dismissed without prejudice for plaintiff's failure to exhaust available administrative remedies before bringing the action.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).