United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
[DOC. NOS. 17, 19, 25]
MICHAEL M. ANELLO United States District Judge.
Eric Andrews, a California state prisoner proceeding pro
se, commenced this action on March 12, 2018, seeking
relief under 42 U.S.C. § 1983 against prison medical
personnel for a violation of his Eighth Amendment right to
adequate medical care. Defendants move to dismiss
Plaintiff's First Amended Complaint for failure to
exhaust his administrative remedies prior to filing suit and
for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6). See Doc. Nos. 17, 19, 25.
For the reasons set forth below, the Court
GRANTS Defendants' motions.
is a prisoner proceeding pro se on his complaint
filed pursuant to 42 U.S.C. § 1983 against medical
professionals J. Hodges, M.D., M. Garcia, R.N., P. Shakiba,
M.D., J. Hoffman, M.D., N. Bogle, R.N, and R. Cross, M.D. The
following description of events is taken from the pleadings
and is not to be construed as findings of fact by the
24, 2017, Plaintiff suffered a leg injury while playing
basketball at Donovan Correctional Facility. Plaintiff
immediately sought medical attention. During the examination,
Plaintiff explained that he “felt a snap, ” lost
all strength in his leg, and was experiencing numbness.
Id. An X-ray revealed no bone fracture, and then
diagnosed Plaintiff with a possible ankle sprain.
Id. Plaintiff received crutches and a bandage to
wrap the ankle and was instructed to continue taking pain
medication which he previously had been prescribed for an
unrelated medical issue. Id.
the next four to five weeks, Plaintiff experienced increasing
pain and difficulty performing work activities. Id.
In September 2017, Plaintiff was transferred to Pelican Bay
Prison. After requesting health services for his worsening
ankle, on January 12, 2018, the results of Plaintiff's
MRI revealed he had suffered a large high grade distal
Achilles tendon tear. See Doc. No. 9, at 9.
According to Plaintiff, a correct initial diagnosis and
timely treatment with a long leg cast or surgery “would
have dramatically shortened [his] healing time, ” and
the lack of those treatments “led to many more months
of pain, suffering, rehabilitation and inability to engage in
athletic and other physical pursuits.” Id. at
March 12, 2018, Plaintiff filed this action in the Southern
District of California alleging violation of his Eighth
Amendment right to adequate medical care, as well as
California state law claims for professional negligence,
medical malpractice, and failure to provide or summon
immediate medical care, against Defendants Hodges and Garcia.
See Doc. No. 1. Plaintiff stated in his complaint
that he had filed inmate appeals regarding his medical care
which remained pending at the second level of review. See
id. at 56.
April 27, 2018, Plaintiff filed a First Amended Complaint,
realleging his Eighth Amendment and state law claims against
Defendants Hodges and Garcia, and adding claims against
Defendants Shakiba, Hoffman, Bogle, and Cross. See
Doc. No. 9. Plaintiff stated in his First Amended Complaint
that his inmate appeals arising out of the relevant events
and related to his claims in this action remained pending at
the final level of review. See id. at 13.
to Exhaust Administrative Remedies
Hodges, Garcia, Shakiba, Hoffman, and Bogle move to dismiss
Plaintiff's claims based on Plaintiff's failure to
exhaust his administrative remedies prior to instituting this
Prison Litigation Reform Act (“PLRA”) requires
that prisoners exhaust “such administrative remedies as
are available before commencing a suit challenging
prison conditions.” 42 U.S.C. § 1997e(a) (emphasis
added). A court must dismiss a case without
prejudice “when there is no presuit exhaustion, ”
even if there is exhaustion while suit is pending.
McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir.
2002). The failure to exhaust is an affirmative defense, and
the defendant bears the burden of raising and proving the
absence of exhaustion. See Albino v. Baca, 747 F.3d
1162, 1166 (9th Cir. 2014). “In the rare event that a
failure to exhaust is clear from the face of the complaint, a
defendant may move for dismissal under Rule 12(b)(6).”
Id. at 1166. Otherwise, the defendant must move for
summary judgment and produce evidence proving the failure to
exhaust. See id.
argue that the failure to exhaust is “clear from the
face of the complaint.” Id. Defendants point
to Plaintiff's statement in his First Amended Complaint:
“I have been awaiting a response from the final level
of review on appeal number 17000088 for over four
months.” Doc. No. 9 at 13. Importantly, Plaintiff does
not dispute that he failed to exhaust his claims prior to
initiating this action. Plaintiff instead responds that he
exhausted his administrative remedies after filing