United States District Court, E.D. California
JOSE O. ARTEAGA, Plaintiff,
D. BAUGHMAN, et al., Defendants.
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding without counsel. Plaintiff
seeks relief pursuant to 42 U.S.C. § 1983, and is
proceeding in forma pauperis. This proceeding was referred to
this court pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 302. Plaintiff consented to proceed before the
undersigned for all purposes. See 28 U.S.C. §
March 15, 2017, plaintiff's complaint was screened,
plaintiff was directed to provide documents for service of
process on Dr. Saltanian, and the Supervising Deputy Attorney
General was directed to respond to plaintiff's motion for
preliminary injunctive relief. On March 28, 2017, plaintiff
filed an amended complaint. On April 3, 2017, the Supervising
Deputy Attorney General filed a response. On April 28, 2017,
plaintiff filed a motion for appointment of counsel. The
court addresses each filing below.
Plaintiff's Amended Complaint
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989); Franklin, 745 F.2d at 1227.
complaint, or portion thereof, should only be dismissed for
failure to state a claim upon which relief may be granted if
it appears beyond doubt that plaintiff can prove no set of
facts in support of the claim or claims that would entitle
him to relief. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984) (citing Conley v. Gibson, 355
U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log
Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981).
In reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738,
740 (1976), construe the pleading in the light most favorable
to the plaintiff, and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).
amended complaint is not complete in itself. Rather,
plaintiff refers the reader to plaintiff's
“statement of facts in affidavit, declaration with
preliminary injunction and T.R.O.” (ECF No. 10 at 3.)
The court cannot refer to a prior pleading in order to make
plaintiff's amended complaint complete. Local Rule 220
requires that an amended complaint be complete in itself
without reference to any prior pleading. This requirement is
because, as a general rule, an amended complaint supersedes
the original complaint. See Loux v. Rhay, 375 F.2d
55, 57 (9th Cir. 1967).
as discussed below, plaintiff's original complaint, as
well as his amended complaint, make clear on the face of the
pleadings that plaintiff did not exhaust his administrative
remedies prior to filing the instant action. (ECF Nos. 1 at
5, 7; 10 at 3.)
Legal Standard re Exhaustion
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).
with the exhaustion requirement is mandatory for any type of
relief sought. Booth v. Churner, 532 U.S. 731, 739,
741 (2001) (holding that prisoners must exhaust their
administrative remedies regardless of the relief they seek,
i.e., whether injunctive relief or money damages, even though
the latter is unavailable pursuant to the administrative
grievance process); accord Jones v. Bock, 549 U.S.
199, 211 (2007) (“There is no question that exhaustion
is mandatory under the PLRA and that unexhausted claims
cannot be brought in court.”); see also Panaro v.
City of North Las Vegas, 432 F.3d 949, 954 (9th Cir.
2005) (The PLRA “represents a Congressional judgment
that the federal courts may not consider a prisoner's
civil rights claim when a remedy was not sought first in an
available administrative grievance procedure.”).
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 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. When the rules of the
prison or jail do not dictate the requisite level of detail
for proper review, a prisoner's complaint “suffices
if it alerts the prison to the nature of the wrong for which
redress is sought.” Griffin v. Arpaio, 557
F.3d 1117, 1120 (9th Cir. 2009). This requirement is so
because the primary purpose of a prison's administrative
review system is to “notify the prison of a problem and
to facilitate its resolution.” Griffin, 557
F.3d at 1120.
under § 1997e(a) is an affirmative defense.
Bock, 549 U.S. at 204, 216. However, where it is
clear that a plaintiff has not first exhausted his
administrative remedies, courts may dismiss such claims
sua sponte. See id. at 199, 214-16
(exhaustion is an affirmative defense and sua sponte
dismissal for failure to exhaust administrative remedies
under the PLRA is only appropriate if, taking the
prisoner's factual allegations as true, the complaint
establishes the failure to exhaust); see also Salas v.
Tillman, 162 Fed.Appx. 918 (11th Cir. 2006), cert.
denied, 549 U.S. 835 (2006) (district court's
sua sponte dismissal of state prisoner's civil
rights claims for failure to exhaust was not abuse ...