United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
Saiyez Ahmed is a state prisoner under the custody of the
California Department of Corrections and Rehabilitation
(CDCR), currently incarcerated at California State Prison,
Los Angeles County (CSP-LAC). Plaintiff proceeds pro se and
in forma pauperis with this civil rights action filed
pursuant to 42 U.S.C. § 1983, on his First Amended
Complaint (FAC), filed October 30, 2015. See ECF No.
ordered by the court, the FAC is comprised of plaintiff's
one-page amended complaint and pages 4 through 34 of
plaintiff's original complaint. See ECF Nos. 9,
10. Upon screening the FAC pursuant to the Prison Litigation
Reform Act (PLRA), 28 U.S.C. 1915A(a), this court found the
allegations therein sufficient to state a cognizable Eighth
Amendment claim against sole defendant Correctional Officer
Johnson for deliberate indifference to plaintiff's
serious medical needs, during plaintiff's prior
incarceration at the California Medical Facility (CMF).
\See ECF No. 10. A settlement conference was held in
this action on June 9, 2017, but the case did not settle.
pending is defendant's motion to dismiss this action,
filed pursuant to Rule 12(b)(6), Federal Rules of Civil
Procedure, based on plaintiff's alleged failure to
exhaust his administrative remedies. See ECF No. 15.
Defendant asserts that this is “the rare event that a
failure to exhaust is clear on the face of the complaint,
” Albino v. Baca, 747 F.3d 1162, 1166 (9th
Cir. 2014), thus authorizing resolution of the matter
pursuant to a motion to dismiss rather than a motion for
matter is referred to the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302(c). For the reasons that follow, this
court recommends that defendants' motion to dismiss be
Prison Litigation Reform Act of 1995 (PLRA) mandates that
“[n]o action shall be brought with respect to prison
conditions under section 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). The PLRA also requires that prisoners, when
grieving their appeal, adhere to CDCR's “critical
procedural rules.” Woodford v. Ngo, 548 U.S.
81, 91 (2006). “[I]t is the prison's requirements,
and not the PLRA, that define the boundaries of proper
exhaustion.” Jones, 549 at 218.
prisoner need exhaust only those administrative remedies that
are in fact “available” to him. “The
obligation to exhaust ‘available' remedies persists
as long as some remedy remains
‘available.' Once that is no longer the case, then
there are no ‘remedies . . . available, ' and the
prisoner need not further pursue the grievance.”
Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005)
(original emphasis) (citing Booth v. Churner, 532
U.S. 731, 739 (2001)). “The only limit to §
1997e(a)'s mandate is the one baked into its text: An
inmate need exhaust only such administrative remedies as are
‘available.'” Ross v. Blake, 136
S.Ct. 1850, 1862 (2016).
inmate is required to exhaust those, but only those,
grievance procedures that are ‘capable of use' to
obtain ‘some relief for the action complained
of.'” Ross, 136 S.Ct. at 1859 (quoting
Booth, 532 U.S. at 738). The Supreme Court has
clarified that there are only “three kinds of
circumstances in which an administrative remedy, although
officially on the books, is not capable of use to obtain
relief.” Ross, at 1859. These circumstances
are as follows: (1) the “administrative procedure . . .
operates as a simple dead end - with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates;” (2) the “administrative scheme . . .
[is] so opaque that it becomes, practically speaking,
incapable of use . . . so that no ordinary prisoner can make
sense of what it demands;” and (3) “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1859-60 (citations
omitted). Other than these circumstances demonstrating the
unavailability of an administrative remedy, the mandatory
language of 42 U.S.C. § 1997e(a) “foreclose[es]
judicial discretion, ” which “means a court may
not excuse a failure to exhaust, even to take [special]
circumstances into account.” Ross, 136 S.Ct.
of a prisoner civil rights action for failure to exhaust
administrative remedies must generally be brought and decided
pursuant to a motion for summary judgment under Rule 56,
Federal Rules of Civil Procedure. See generally,
Albino, 747 F.3d 1162. The Ninth Circuit has laid
out the following burdens and analytical approach to be taken
by district courts in assessing the merits of a motion for
summary judgment based on the alleged failure of a prisoner
to exhaust his administrative remedies, id. at 1172
(citation and internal quotations omitted):
[T]he defendant's burden is to prove that there was an
available administrative remedy, and that the prisoner did
not exhaust that available remedy. . . . Once the defendant
has carried that burden, the prisoner has the burden of
production. That is, the burden shifts to the prisoner to
come forward with evidence showing that there is something in
his particular case that made the existing and generally
available administrative remedies effectively unavailable to
him. However, . . . the ultimate burden of proof remains with
only exception to this approach is “[i]n the rare event
that a failure to exhaust is clear on the face of the
complaint.” Id. at 1166. Under such
circumstances, a defendant may move to dismiss a prisoner
civil rights complaint pursuant to Rule 12(b)(6), Federal
Rules of Civil Procedure. Id. (citing Jones v.
Bock, 549 U.S. 199, 215 (2007) (dismissal appropriate
when affirmative defense appears on the face of the
complaint)). “Otherwise, defendants must produce
evidence proving failure to exhaust in order to carry their
burden” pursuant to a motion for summary judgment.
Albino, 747 F.3d at 1166.
FAC, DEFENDANT'S MOTION & THE ...