The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST PRIOR TO FILING SUIT (Doc. 11) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations Re: Defendants' Motion to Dismiss
Plaintiff Andrew Saethong is a state prisoner, proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983 and state law. Defendants removed Plaintiff's suit from state court to this Court on August 4, 2008. Before the Court is Defendants' April 8, 2009, motion to dismiss the case for Plaintiff's failure to exhaust available administrative remedies prior to bringing this action. After a thorough review of Defendants' motion, Plaintiff's opposition, Defendants' reply, Plaintiff's rebuttal, and all supporting documents, this Court recommends that Defendants' motion to dismiss Plaintiff's federal claims be granted. The Court further recommends that Plaintiff's state claims be remanded to state court.
I. Summary of Allegations
In a complaint filed in California state court on December 4, 2007, Plaintiff, an inmate at Pleasant Valley State Prison ("PVSP"), alleged an Eighth Amendment claim for deliberate indifference to his serious medical needs, charging that Defendants James Yates, the PVSP warden, and F. Igbinosa, PVSP's chief medical officer, failed to transfer Plaintiff to another prison after he contracted Valley Fever. As a result, asserts Plaintiff, medical professionals prescribed Diflucan (Fluconazole) for longer than the recommended ninety-day period, weakening Plaintiff's immune system and causing pneumonia.
Plaintiff also alleged that although Defendants were aware that Valley Fever is endemic to PVSP and that Blacks and Filipinos have a greater risk of contracting Valley Fever, Defendants failed to warn Plaintiff of hazardous conditions, as they are required to do by Cal. Civ. Code § 846 and Cal. Gov't Code § 830.
A. Defendants' Contentions
Defendants contend that Plaintiff has failed to exhaust his administrative remedies with regard to both his federal claims under the Eighth Amendment and his state negligence claims. By failing to pursue remaining remedies after his grievance was partially granted, say Defendants, Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 (42 U.S.C. § 1997e(a)) ("PLRA"). Because it was initiated after Plaintiff filed this suit, Plaintiff's attempt to secure a transfer by means of a Reasonable Modification or Accommodation Request under the Americans With Disabilities Act does not constitute exhaustion either. Finally, Defendants allege that Plaintiff cannot maintain a state negligence action since he failed to supplement and resubmit his Notice of Tort Claim after the Victim Compensation and Government Claims Board rejected it as incomplete.
B. Plaintiff's Opposition
Plaintiff concedes that he did not pursue his grievances to the director's level. Relying on Gomez v. Winslow, 177 F.Supp.2d 977, 985 (N.D.Cal. 2001), Plaintiff maintains that because his grievance was granted at the informal level, his claims were exhausted, and he did not need to pursue his administrative grievance further. Similarly, because his Reasonable Modification or Accommodation Request (Form 1824) was denied, Plaintiff asserts that claim is also exhausted. Finally, Plaintiff contends that, because he filed notice of his California tort claim but received no response, his state claims must be treated as exhausted under the law.
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a inmate 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). All inmates are required to exhaust available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).
Exhaustion is required regardless of the relief sought by the inmate and regardless of the relief offered by the process. Booth v. Churner, 532 U.S. 731, 741 (2001). Futility or other exceptions are not part of the statute. Id. at 741 n. 6. An untimely or otherwise procedurally defective administrative grievance or appeal will ...