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Markay v. Rahman

September 3, 2008


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' May 12, 2008, motion to dismiss for failure to exhaust administrative remedies. After carefully considering the record, the court recommends that defendants' motion be granted.


This action is proceeding on the amended complaint filed December 12, 2007, as to defendants Abdur-Rahman, David and Hansen.

Plaintiff alleges that on November 16, 2006, dental staff at California State Prison-Corcoran (Corcoran) began removing all of plaintiff's upper teeth. Plaintiff was given a supplemental drink, apparently because he could not chew.

On March 19, 2007, plaintiff was transferred to High Desert State Prison (HDSP) with instructions for prison officials there to continue giving plaintiff the supplemental drink. However, this instruction was not followed.

On April 10, 2007, plaintiff saw the dentist for an evaluation. The dentist determined that some of plaintiff's bottom teeth would have to be removed. The dentist prescribed the supplemental drink for ten days. On May 1, 2007, it was determined that all but four of plaintiff's lower teeth would have to be removed. Apparently the bottom teeth were removed on this date.

On May 1, 2007, plaintiff slammed into his celldoor. All but one of his stitches were broken open. On May 3, 2007, defendant Dr. Hansen, the prison dentist, wrote a false report stating that the stitches were intact.

Due to a knee injury, plaintiff was issued a knee brace and cane in 1994. On May 2, 2007, defendant David discontinued plaintiff's cane authorization without review of his medical chart or examining him in person. The cane was taken away after custody staff told defendant David that plaintiff had assaulted a female officer with the cane. Plaintiff claims he assaulted no one.

Due to low blood pressure and anemia, plaintiff took three blood thinning drugs. Plaintiff also had been prescribed thermal underwear. Defendants David and Abdur-Rahman took away plaintiff's thermal underwear.

Plaintiff alleges that before his transfer to HDSP, prison officials at Corcoran had approved him to be seen by a gastrointestinal specialist. When he arrived at HDSP, defendant Abdur-Rahman, without examining him, removed plaintiff from the list to see the specialist even though plaintiff had been complaining of stomach pain since his arrival. On August 29, 2007, plaintiff was rushed to the public hospital in Reno, Nevada, where he had emergency colon surgery. Plaintiff also suffered a heart attack and was in the hospital for three weeks.


42 U.S.C. § 1997e(a) provides that, "[n]o 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." In order for California prisoners to exhaust administrative remedies, they must proceed through several levels of administrative 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. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement. Id. at 1237-38.

However, if the subject of the prisoner's complaint is a "staff complaint," such does not proceed through the ususal grievance procedures. The remedy for such a complaint is that CDCR initiate an investigation. An inmate can receive no other relief at that time regarding the staff complaint. Brown v. Valoff, 422 F.3d 926, 937-938 (9th Cir. 2005) (not cited in defendants' motion). If relief other than is available for a staff complaint is sought, e.g., be housed in protective custody, be single celled etc., then the regular three level appeal process must be exhausted as for that relief. Id at 938. If on a staff complaint, a ...

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