United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
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.
Screening Amended Complaint
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.)
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. §
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).
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.
Administrative Appeal Process
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. 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,
Has Plaintiff Exhausted?
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.)
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,