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Powell v. Madden

United States District Court, E.D. California

April 2, 2014

MADDEN, et al., Defendants.


RALPH R. BEISTLINE, District Judge.


At Docket 44 Defendants Jon Franco, M.D., Lourdes Mettry and Rodrigo Ogues moved to dismiss Plaintiff's Eighth Amendment medical indifference claim on the basis that Plaintiff Tony Edward Powell failed to properly exhaust his administrative remedies. Powell has opposed the motion[1] and Defendants have replied.[2] The matter is ripe for decision and is submitted on the moving and opposing papers.[3]

Powell's lawsuit arises out of a slip and fall incident that occurred on May 12, 2012. As relevant to the motion before the court, Powell has alleged that Defendants Jon Franco, M.D., Lourdes Mettry, and Rodrigo Ogues were deliberately indifferent to his serious medical needs.


A prisoner must exhaust his administrative remedies prior to filing suit, not during the pendency of the suit.[4] Exhaustion is required irrespective of the relief sought by the prisoner and regardless of the relief provided by the process;[5] is an affirmative defense to be raised and proven by the defense;[6] although not jurisdictional, exhaustion is nonetheless mandatory, and there is no discretion to excuse it.[7] "Proper exhaustion" means "complet[ing] the administrative review process in accordance with the applicable rules."[8] "The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion."[9]

A defendant has the initial burden to show that "(1) a grievance procedure existed and (2) [the plaintiff] did not exhaust the grievance procedure."[10] Once a defendant has met this burden, the burden shifts to the plaintiff to demonstrate that the grievance procedure was not available.[11]

Administrative exhaustion is a defense that "should be treated as a matter in abatement subject to an unenumerated Rule 12(b) motion."[12] "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact."[13] If a court finds that a plaintiff has failed to exhaust, "the proper remedy is dismissal of the claim without prejudice."[14]


Powell attempted to raise his deliberate indifference claim in two separate administrative grievances: 683052 and 695858. As relevant to the issue before the Court, the following summary of these administrative proceedings is provided.[15]

Grievance 683052: Powell initiated this grievance on March 12, 2012, two months prior to his slip and fall. At the first level Powell contended that Defendant Mettry had denied him his cholesterol medication, and that he was being denied medical shoes or boots. On May 7, 2012, the Warden responded, noting that Powell had refused to allow further monitoring of his cholesterol level which resulted in the discontinuance of his medication. The Warden granted his request with respect to the medical shoes or boots.[16] Disagreeing with the Warden's finding vis-a-vis the cholesterol medication, Powell appealed to the Regional Director. The Regional Director denied Powell's appeal, providing Powell with copies of three treatment refusal forms.[17] In his appeal to the Central Office Powell changed his complaint, substituting his medical indifference claim arising out of the May 12, 2012, incident. Powell did not raise the issues he presented in the lower levels. The Central Office provided a information response indicating Powell had received appropriate medical care.[18]

Grievance 695858: Powell initiated this grievance on June 28, 2012, requesting an investigation into the slip and fall incident, but does not raise any issue concerning the adequacy of the medical care. This grievance was rejected on the basis that, under the regulations, only one request was permitted per grievance.[19] Powell's appeal to the Regional Director was rejected with directions to follow the instructions provided by the institution.[20] Powell's further appeal to the Central Office was rejected stating: "You submitted your request or appeal to the wrong level. You should have filed at the institution, regional office, or central office level."[21]


This Court agrees with Defendants that, with respect to his deliberate indifference claim, Powell has not properly exhausted his administrative remedies. As relevant to ...

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