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Partida v. Liu

United States District Court, E.D. California

November 6, 2017

GUSTAVO PARTIDA, Plaintiff,
v.
ALEXANDER LIU, et al., Defendants.

          FINDINGS & RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner, proceeding without counsel, and paid the filing fee. Plaintiff filed his civil rights complaint, pursuant to 42 U.S.C. § 1983, on September 25, 2014. (ECF No. 1.) In his amended complaint, plaintiff alleges violation of his rights under the Eighth and Fourteenth Amendments, in connection with his medical treatment at the San Joaquin General Hospital in 2016. Review of plaintiff's pleading and its attachments reflect that plaintiff failed to exhaust his administrative remedies prior to filing the instant action, and thus, as set forth below, this action must be dismissed without prejudice.

         II. Screening Amended Complaint

         Plaintiff claims he had multiple operations and had to return to the hospital multiple times, apparently for an infection, subjecting him to pain. Plaintiff names as defendants Dr. Liu, the San Joaquin General Hospital, and the California Health Care Facility. Medical records provided by plaintiff confirm that plaintiff had right inguinal hernia repair surgery on June 12, 2016, a right orchiectomy on June 17, 2016, and subsequently developed “[s]epsis, secondary to right epididymitis.” (ECF No. 1 at 14, 23.)

         A. Legal Standards

         The 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. § 1915A(b)(1), (2).

         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 conditions of 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. In other words, prisoners are required to exhaust available remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007).

         Proper exhaustion of available remedies is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 95-96 (2006). The administrative process is exhausted only after the inmate complies with all relevant prison grievance procedures and receives a decision from the third level. Ngo, 548 U.S. at 95-96.

         B. Administrative Appeal Process

         The California Department of Corrections and Rehabilitation (“CDCR”) provides inmates the right to appeal administratively “any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). Following amendments that took effect January 28, 2011, California prisoners are required to proceed through three levels of appeal to exhaust the administrative appeal process: (1) formal written appeal on a CDC 602 inmate appeal form; (2) second level appeal to the institution head or designee; and (3) third level appeal to the Director of the CDCR. See 15 Cal. Code Regs. § 3084.1-3084.9.[1] A final decision from the Director's level of review satisfies the exhaustion requirement under 42 U.S.C. § 1997e(a). See Lira v. Herrera, 427 F.3d 1164, 1166-67 (9th Cir. 2005); see also Cal. Code Regs. tit. 15, § 3084.7(d)(3) (as amended Dec. 13, 2010).

         C. Has Plaintiff Exhausted?

         Initially, plaintiff denies the existence of a grievance procedure at his prison, and concedes he did not exhaust his Eighth Amendment claim because he “was not aware of the law pertaining to this case.” (ECF No. 6 at 4.) Subsequently, in his third claim raising Eighth and Fourteenth Amendment claims, plaintiff concedes the prison has a grievance procedure, and states he did not exhaust his administrative remedies because “outside hospital and doctor [sic].” (ECF No. 6 at 5.)

         Sua sponte dismissal for failure to exhaust administrative remedies under the PLRA is appropriate if, taking the prisoner's factual allegations as true, the complaint establishes his failure to exhaust. See Jones, 549 U.S. at 214-15 (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 his failure to exhaust); 28 U.S.C. § 1915A(b)(1); Bennett v. King, 293 F.3d 1096, 1098 ...


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