United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a California prisoner proceeding pro se with an action for
violation of civil rights under 42 U.S.C. § 1983. The
claims which remain are for excessive force in violation of
the Eighth Amendment against defendants Shinnette and Mohr
(defendants). The claims arise out of events occurring March
17, 2015 at California State Prison, Sacramento. Defendants
have filed a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure arguing plaintiff failed to
exhaust administrative remedies with respect to his remaining
claims prior to filing suit.
1997(e)(a) of Title 42 of the United States Code provides
that “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, . . .
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997(e)(a). Administrative
procedures generally are exhausted with respect to the
California prisoner grievance process once the third level of
review is complete. The third level of review constitutes the
decision of the Secretary of the California Department of
Corrections and Rehabilitation (CDCR). Cal. Code Regs. tit.
15, § 3084.7.
exhaustion requirement demands “proper”
exhaustion. Woodford v. Ngo, 548 U.S. 81, 90-91
(20016). In order to “properly exhaust”
administrative remedies the prisoner must generally comply
with the prison’s procedural rules throughout the
administrative process. Jones v. Bock, 218 U.S. 199,
of a complaint under Federal Rule of Civil Procedure 12(b)(6)
for failure to exhaust administrative remedies is appropriate
only if it is clear on the face of a complaint that
administrative remedies have not been exhausted. Albino
v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). Material
properly attached to a complaint is generally considered part
of the complaint when considering whether the court should
dismiss a complaint under Rule 12(b)(6). See Hal Roach
Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d
1542, 1555 n. 19 (9th Cir. 1989).
to his complaint is a copy of the grievance plaintiff
submitted concerning the alleged use of excessive force by
defendants at issue in this case. ECF No. 1 at 33-36.
Plaintiff ultimately submitted his grievance to the third
level of review, but the grievance was rejected on August 26,
2015 because plaintiff failed to submit a medical report he
references in his grievance as required by CDCR regulations.
Id. at 8, 34. Plaintiff was given instructions as to
how he could obtain the required document if he did not
possess it and told he could resubmit his grievance once he
did so. Id. at 8. There is nothing in
plaintiff’s pleadings indicating he ever resubmitted
his grievance to the third level and therefore he never
“properly” exhausted administrative remedies.
opposition, plaintiff argues he was not required to proceed
to the third level because his grievance was “partially
granted” at the second level. However, the appeal was
granted only to the extent plaintiff requested an inquiry
into the actions of defendants. The appeal was denied with
respect to plaintiff’s request that “they be held
accountable for their actions.” Id. at 9.
Plaintiff was specifically informed at the second level that
it was the decision of the reviewer that defendants did not
violate CDCR policy, and that plaintiff could appeal that
decision to the third level. Id. at 9-10. Plaintiff
was also specifically informed that administrative remedies
would not be deemed “exhausted” until a decision
had been rendered at the third level. Id.
of the foregoing reasons, it is clear from plaintiff’s
complaint, and documents attached thereto, that plaintiff
failed to exhaust administrative remedies with respect to his
remaining claims prior to filing suit. Accordingly,
defendants’ motion to dismiss should be granted, and
this case should be closed.
accordance with the above, IT IS HEREBY ORDERED that the
Clerk of the Court assign a district court judge to this
HEREBY RECOMMENDED that
Defendants’ motion to dismiss (ECF No. 15) be granted;
Plaintiff’s complaint be dismissed for failure to
exhaust available administrative remedies; and
case be closed.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(l). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge’s Findings and Recommendations.” Any
response to the objections shall be served and filed within
fourteen days after service of the objections. The parties
are advised that ...