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Moore v. Snell

August 28, 2008

GEORGE D. MOORE, PLAINTIFF,
v.
D. SNELL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

FINDINGS AND RECOMMENDATION

Plaintiff, an inmate in the custody of the California Department of Corrections at Corcoran State Prison, brings this civil rights action pursuant to 42 U.S.C. § 1983 against defendant correctional officials employed by the Department of Corrections at Avenal State Prison. This action proceeds against Defendants D. Snell and R. Wicks on Plaintiff's claims of excessive force and denial of medical care. Pending before the court is defendants' motion to dismiss. Plaintiff has opposed the motion.

This lawsuit arises from a disturbance that occurred on October 22, 2004. Plaintiff alleges that the facility was put on lock down while interviews were being conducted. On October 28, 2004, Defendant Correctional Officer Snell attempted to interview Plaintiff. Plaintiff refused to be interviewed. Plaintiff alleges that the following occurred:

At that time C/O D. Snell ordered me to put my hands behind my back. While putting my hands behind my back C/O D. Snell became aggressive with how he was applying the restraints. The restraints were improperly applied to the point that the circulation in my right wrist was being cut off. I asked C/O D. Snell would he please readjust the restraints. C/O D. Snell continued to apply the restraints improperly while stating that he could care less. I then began to prosume to lay down in a non-agressive position face down on the ground. While in this position C/O D. Snell jumped on to my back and applied unwarranted use of force that resulted in my left elbow right wrist being cut severely and bleeding.

Plaintiff was then escorted to the Program Office. Plaintiff alleges that Defendant Sergeant Wick denied Plaintiff's request for medical care, and directed that Plaintiff be moved out of his housing unit and into the gym in order to hide Plaintiff's injuries.

Defendants seek to dismiss on the ground that Plaintiff has failed to exhaust his available administrative remedies, pursuant to 42 U.S. C. § 1997e(a). The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution. . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

Section 7 of The Prison Litigation Reform Act was amended to read as follows:

(a) APPLICABILITY OF ADMINISTRATIVE REMEDIES

No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (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(a). In Booth v. Churner,532 U.S. 731 (2001). The Supreme Court, in addressing the question of whether a prisoner need exhaust available remedies when monetary damages are unavailable, held that "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Id. at 1821. In order to bring his claim in federal court, plaintiff must completely exhaust his available administrative remedies.

In California, there are four levels of review - informal level, first formal level, second formal level, and third formal level. The third formal level constitutes the Director's decision on appeal. Cal. Code Regs. Tit. 15, § 3084.5(e)(2).

In support of their motion, defendants submit the declaration of N. Grannis, Chief of the Inmate Appeals Branch of the CDCR in Sacramento. N. Grannis declares the following:

The Inmate Appeals Branch (IAB) provides the third and final level of administrative review on appeals filed by inmates and ...


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