Opinion
No. C 01-3300 WHA (PR)
September 15, 2003
JUDGMENT
The court has dismissed this prisoner in forma pauperis compliant. A judgment of dismissal without prejudice is entered in favor of defendants. Plaintiff shall take nothing by way of his complaint.
IT IS SO ORDERED.
ORDER GRANTING DEFENDANT JENNINGS' MOTION TO DISMISS
Plaintiff, who is now a prisoner at San Quentin State Prison, filed a pro se civil rights complaint under 42 U.S.C. § 1983 challenging the conditions of his confinement at the San Benito County Jail. He subsequently dismissed his claims against defendants Hill and Terruricci; the only defendant remaining in the case is movant Jennings. Jennings' motion for judgment on the pleadings was granted as to plaintiff's failure to protect claim. It was dismissed with leave to amend; plaintiff not having amended, only the medical care claim remains in the case.In the ruling the Court noted that in his answer defendant had raised failure to exhaust as a defense, stated that the exhaustion issue should be resolved before the case proceeded further, and set a deadline for defendant to file an unenumerated motion to-dismiss for failure to exhaust, should he wish to do so. Defendant filed such a motion. After some difficulty because of plaintiff s transfers between institutions, he was served with a copy of the motion to dismiss and has filed a letter and declaration in opposition to the motion to dismiss. The motion is submitted.
DISCUSSION
The Prison Litigation Reform Act of 1995 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). Compliance with the exhaustion requirement is required. Porter v. Nussle, 122 S.Ct. 983, 992 (2002);Booth v. Churner, 532 U.S. 731, 739-40 n. 5 (2001). Nonexhaustion under § 1997e(a) is an affirmative defense — defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). It should be raised in an unenumerated Rule 12(b) motion rather than in a motion for summary judgment. Id. In deciding such a motion — a motion to dismiss for failure to exhaust nonjudicial remedies — the court may look beyond the pleadings and decide disputed issues of fact. Id at 1119-20. If the court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal without prejudice. Id. at 1120.Defendant's motion establishes that the San Benito County Jail has a formal administrative grievance system, and that although plaintiff used it once for an unrelated claim, he did not file a grievance relating to the claim at issue here, namely defendant's alleged failure to provide him with proper medical care. In his opposition plaintiff contends that he was unable to gain access to the jail grievance system after he was transferred to state prison, and that he attempted to exhaust by writing a claim letter to the sheriff. In his declaration in support of the opposition he states that this letter was sent "on Sept 17, 2001, or thereabouts. . . ." The copy of the letter supplied as an attachment to the declaration is dated September 17, 2001.
The incident which gave rise to this case occurred on September 25, 2000, and plaintiff must have been aware of the alleged failure to provide medical treatment at that time. Plaintiff does not explain why he did not file a grievance while he was still at the jail, even if it is in fact not possible to file such a grievance from another institution. In any event, plaintiff's attempt to exhaust by writing to the sheriff occurred after this case was filed — the complaint was filed on August 29, 2001, and plaintiff's declaration establishes that the letter was sent no earlier than September 17, 2001. Under § 1997e(a), the action must be dismissed unless the prisoner exhausted his available administrative remedies before he or she filed suit, even if the prisoner fully exhausts while the suit is pending.McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Plaintiff's letter to the sheriff therefore was not sufficient to exhaust.
Although no evidence has been provided by either party as to when plaintiff was transferred from the jail, the attachments to a declaration in support of defendant's motion show that he was at the jail and filed a grievance on another matter in December of 2000.
Plaintiff did not attempt to exhaust his administrative remedies while he was at the jail, and in fact took no steps to do so until nearly a year later, after he had filed this suit. That is not sufficient. The motion to dismiss will be granted.
CONCLUSION
Defendant Jennings' motion to dismiss (doc 19) is GRANTED. This case is DISMISSED without prejudice. All other pending motions (docs 23, 26 31) are DENIED as moot. The clerk shall close the file.
SO ORDERED.