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Brookins v. McDonald

June 21, 2010

MELVIN BROOKINS, PLAINTIFF,
v.
MICHAEL MCDONALD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On March 8, 2010, defendants filed a motion to dismiss on the grounds that plaintiff failed to exhaust his administrative remedies prior to filing the instant action. On March 31, 2010, plaintiff filed an opposition to the motion to dismiss in which he states he is a Plata*fn1 class member, and that because he is a Plata class member he has exhausted his administrative remedies. (Dkt No. 21 at 2 & 3.) In their April 5, 2010 reply, defendants contend plaintiff's complaint should be dismissed because his membership in the Plata class does not relieve him of his obligation to first exhaust administrative remedies. (Dkt. No. 22.)

II. Motion to Dismiss

Background Plaintiff is proceeding on his original complaint against defendants S. M. Roche, G. Dudley, M. Miller, D. Swingle, and Michael McDonald (collectively "defendants"). Therein, he alleges as follows: In January of 2007, plaintiff began having problems with his knee after a full knee replacement. Due to an alleged lack of adequate medical care and alleged improper post-operative care at High Desert State Prison ("HDSP"), plaintiff avers he was in severe pain by October 2007, and that "gangrene, staphyloccus, and all kinds of infections set in the knee." (Complt. at 5.) Plaintiff's leg was amputated from above the knee in December 2007.

On January 11, 2008, Dr. Parlasca recommended the following plan: I [Dr. Parlasca] need aggressive stump or prosthetic fitting. We want to begin as soon as possible to get that on so we can get him up and get him walking. I am going to see him back here in 2 weeks just to make sure that we are getting started with his prosthetic fittings. (Complt., Ex. C.) Plaintiff has been confined to a wheelchair since his amputation. Plaintiff alleges the prosthetic fitting was started, but not completed, and does not yet fit correctly. Plaintiff states he is unable to walk.

Plaintiff further contends that High Desert State Prison lost its contract with the company providing prosthetics and fittings, and alleges that prison officials want to transfer plaintiff to another institution. Plaintiff alleges that such a transfer would place him at the bottom of the medical list for treatment and, due to prison overcrowding, would mean it will be years before he receives "adequate, or at least medical treatment again." (Complt. at 6.)

Plaintiff seeks declaratory and injunctive relief, monetary and punitive damages. (Complt. at 8-9.)

Legal Standard

The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide 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." 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding the conditions of their confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.

Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734.*fn2

A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Brown, 422 F.3d at 936-37.

As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84.

The State of California provides its prisoners the right to appeal administratively "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). It also provides them the right to file appeals alleging misconduct by correctional officers and officials. Id. at § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a 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 and Rehabilitation. 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 under § 1997e(a). Id. at 1237-38.

Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court may look beyond the pleadings to determine whether a plaintiff exhausted his administrative remedies. Id. at 1119-20.

Analysis

a. HDSP ...


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