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Gomez v. Swanson

April 22, 2009


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge


Chief United States District Judge Anthony W. Ishii has reassigned this prisoner civil rights action, brought under 42 U.S.C. § 1983, to the undersigned judge. (Docket No. 31.) Currently pending are Defendants' motions to dismiss for failure to exhaust administrative remedies. (Docket Nos. 27, 28.) After reviewing the parties' briefing, the Court has determined that this matter will be decided on the basis of the written record without oral argument.

For the reasons set forth below, the Court concludes that Plaintiff failed to exhaust his administrative remedies, and this case shall be dismissed without prejudice.


On December 28, 2005, Plaintiff Trinidad Gomez, a pretrial detainee, slipped and fell in the visiting area of the Bob Wiley Detention Facility in Visalia, California, and correctional officers soon discovered that his hand restraints could not be unlocked. Plaintiff alleges that one of the officers, Deputy Swanson, retrieved bolt cutters and attempted to cut off the restraints, but he managed only to twist Plaintiff's arms behind his back. The supervisor on duty, Sergeant Elliott, warned Deputy Swanson not to cut Plaintiff's skin, to which Deputy Swanson replied that he didn't care, and deputies Borgioli and Avalos allegedly told Deputy Swanson that he should just cut off Plaintiff's arms. The restraints were removed, but Plaintiff claims that his back had been seriously injured in the process.

Over the next few days, Plaintiff requested a "medical request form" and "sick call slips," but he was told that none were available at that time, and he was not taken to the infirmary. Plaintiff also contends, without elaboration, that he was denied a jail grievance form "when this incident occurred." (Second Amended Complaint, pp. 2.) Regardless, correctional officers informed him that they had consulted with medical staff about his complaints, and they gave him a non-prescription pain reliever. Five days after the incident, Plaintiff was personally examined by a doctor, who increased the dosage of the over-the-counter medication and prescribed a mild muscle relaxant. Plaintiff claims that he was eventually diagnosed as having a disk protrusion and a cracked disk in his lower back.

Plaintiff was transferred from the county jail to a state prison in April 2006. Four months later, in August 2006, he wrote a letter to Sergeant Elliott at the jail asking for "copies of everything regarding this incident" and "to have a grievance form sent to [him] as well." (Second Amended Complaint, Exhibit B.) He asserts that he did not receive any response.

Plaintiff initiated the present action on September 20, 2006, claiming that the officers used excessive force in removing the restraints and that the jail staff's failure to promptly treat his injuries showed deliberate indifference to his serious medical needs, violating his rights as a pretrial detainee under the Due Process Clause of the Fifth and Fourteenth Amendments. After Plaintiff filed a Second Amended Complaint, United States Magistrate Judge Dennis L. Beck found that "the complaint appears to state cognizable claims for relief for the use of excessive force against defendants Swanson, Elliott, Borgioli, and Avalos." (Docket No. 15, pp. 1-2.) Judge Beck ordered the Marshal to serve the Second Amended Complaint on these defendants. (Docket No. 17.)

Elliott, Swanson, and Avalos are represented by the County Counsel for the County of Tulare. They have filed an Answer to the Second Amended Complaint and a Motion to Dismiss Complaint for Failure to Exhaust Administrative Remedies. (Docket Nos. 20, 28.) With the assistance of separate counsel, Defendant Borgioli has submitted her own Answer and a Motion to Dismiss on the same ground. (Docket Nos. 22, 27.) Plaintiff has responded to these motions, which are now ripe for the Court's decision.


Pursuant to the Prison Litigation Reform Act of 1995 (PLRA), an inmate is required to exhaust all available administrative remedies within the jail or prison system before he can bring a civil rights lawsuit challenging the conditions of his confinement. 42 U.S.C. § 1997e(a). Proper exhaustion of administrative remedies is required, meaning that "a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Woodford v. Ngo, 548 U.S. 81, 88 (2006). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007). In Jones, the Supreme Court noted that the important policy concern behind requiring exhaustion is that it "allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Id. at 204.

Where there is an "informal[]" and "relative[ly] simpl[e]" prison grievance system, prisoners must take advantage of it before filing a civil rights complaint. Woodford v. Ngo, 548 U.S. at 103. In Ngo, the prisoner had filed his grievance within six months of the incident at issue, rather than within fifteen days as required by the California prison grievance system. Id. at 86-87. The Supreme Court rejected the Ninth Circuit's determination that the prisoner "had exhausted administrative remedies simply because no such remedies remained available to him." Id. at 87.

Failure to exhaust remedies is an affirmative defense that should be brought as an unenumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2002). In deciding a motion to dismiss for failure to exhaust, a court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. Defendants bear the burden ...

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