Opinion
CASE NO. CV-F-05-1272 AWI DLB.
August 30, 2006
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Documents #8 #9]
BACKGROUND
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's first amended complaint, filed December 6, 2006. The first amended complaint alleges that Defendants failed to provide Plaintiff with timely medical care. The first claim is against health care providers, and alleges that they were deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment. The second claim is against supervisory personnel, and alleges they failed to train, supervise, and discipline employees. The third claim is a pendant state law claim and alleges Defendants failed to provide medical care in violation of California Government Code § 845.6.
On January 3, 2006 and January 18, 2006, Defendants filed two motions to dismiss. In both motions, Defendants contend that Plaintiff failed to exhaust his administrative remedies prior to filing suit. On February 21, 2006, Plaintiff filed an opposition. On February 23, 2006, Defendants filed a reply. On June 26, 2006, Defendants filed a supplemental brief concerning new decisions by the Supreme Court and Ninth Circuit that are relevant to the exhaustion issue.
LEGAL STANDARD
Pursuant to section 1997e(a) of the Prison Litigation Reform Act of 1995, "[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." The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 435 U.S. 516, 532 (2002). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001).
The Booth v. Churner decision effectively overruled the portion of Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999), cert. denied, 120 S.Ct. 787 (2000) which provided that exhaustion was not required if the prisoner was seeking only money damages in his or her action and the grievance process did not allow for such an award. Rumbles v. Hill, 182 F.3d 1064, 1069 (9th Cir. 1999).
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084, et seq. "Any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can reasonably demonstrate as having an adverse effect upon their welfare." Id. at 3084.1(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." See Cal. Code Regs. tit 15, § 3084.5.
The Ninth Circuit has held that Section 1997e(a) of the PLRA does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. In'l Longshoremen's Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact.Wyatt, 315 F.3d at 1119-20. If the court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
DISCUSSION
At issue in the pending motion is whether Plaintiff properly exhausted his claims. On December 15, 2004, Plaintiff submitted a CDC Form 602 concerning his medical treatment. This appeal states that beginning in October 2003, Plaintiff was sick with fever, nausea, night sweats, vomiting, and Plaintiff began to loose weight rapidly. The appeal states that on October 6, 2003, Plaintiff began having chest pains, and attempted to see a doctor. The appeal states that Defendant Benjamin Elrod refused treatment and told Plaintiff his symptoms were not an emergency. The appeal states that eventually Plaintiff attempted suicide so that he could see a doctor. The appeal states that Plaintiff was examined and sent to an outside medical facility, Mercy Hospital, and treated for valley fever. The appeal states that Plaintiff believes he was discharged from Mercy Hospital too soon. The appeal states that medical staff is inadequate and unprepared to deal with inmates in an expedient and timely manner. The appeal also alleges Plaintiff receiving a bad sunburn after being forced to sit in the hot sun for over three hours while a search was conducted. Defendant Benjamin Elrod again refused Plaintiff medical treatment. The appeal asked for a complete investigation into the Facility medical staff, specifically, but not limited to the actions of Defendant Elrod, asked that medical staff be dealt with, and asked that all inmates on Facility D be allowed adequate, appropriate, and expedient medical attention.On December 31, 2004, this appeal was bypassed at the informal level. On March 10, 2005, Plaintiff's appeal at the first level of review was partially granted. The first level response reviewed Plaintiff's medical treatment and found Plaintiff's treatment for valley fever and the sunburn was similar to that for other inmates, and was appropriate. The first level response also indicated that Plaintiff's allegations were being reviewed, and if staff misconduct was substantiated, the institution would take appropriate action. The first level response stated that if Plaintiff was dissatisfied, he could submit his appeal at the second level for review.
On March 21, 2005, Plaintiff appealed to the second level. Plaintiff stated in this appeal that the first level had not addressed all of Plaintiff's factual allegations. On May 4, 2005, Plaintiff's second level appeal was screened out as untimely because Plaintiff was appealing an issue that occurred in October 2003.
The Supreme Court recently confirmed that the Prison Litigation Reform Act of 1995 requires a prisoner to exhaust any available administrative remedies before challenging prison conditions in federal court. Woodford v. Ngo, 126 S.Ct. 2378, 2380 (2006). InWoodford v. Ngo, 126 S.Ct. 2378 (2006), the Supreme Court held that "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 2386. The Supreme Court found that "[proper exhaustion] means . . . a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Id. (emphasis added). The Supreme Court reasoned that the:
benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. The prison grievance system will not have such an opportunity unless the grievant complies with the system's critical procedural rules. A prisoner who does not want to participate in the prison grievance system will have little incentive to comply with the system's procedural rules unless noncompliance carries a sanction, and under respondent's interpretation of the PLRA noncompliance carries no significant sanction.Ngo, 126 S.Ct. at 2388.
The California Department of Corrections has an administrative grievance system for inmate appeals. Cal. Code of Regs., tit. 15 § 3084 et seq. Pursuant to this system, an inmate must submit any appeal within 15 working days of the event or decision being appealed, or of receiving an unacceptable lower level appeal decision. Cal. Code of Regs., tit. 15 § 3084.6(c). Plaintiff's first level appeal was filed in December 2004, more than 15 days after the October 2003 events. However, the first level appeal was addressed on the merits. Unsatisfied with this response, Plaintiff filed his second level appeal on approximately March 21, 2005. The Appeals Coordinator exercised her discretion to screen out the appeal because Plaintiff did not file any appeal within fifteen days of the alleged inadequate medical care in October 2003, as was required under the first step of California's prison administrative appeals process. The Appeals Coordinator informed Plaintiff that there had been too great a time lapse and there was no explanation of why Plaintiff did not file an appeal in a timely manner. Plaintiff never appealed or responded to the Appeals Coordinator's reason for rejecting his second level appeal in a follow-up appeal or an appeal to the Director's Level.
The rejection of Plaintiff's appeal as untimely means that Plaintiff has not exhausted his administrative remedies. The Supreme Court's recent decision in Ngo bars this action. An inmate has not exhausted his administrative remedies when his inmate appeal is rejected as untimely. Ngo, 126 S.Ct. 2386. Plaintiff has not cited any exception to this rule that applies in this action. Thus, this action must be dismissed.
In his opposition, Plaintiff appears to argue that exhaustion was satisfied because Plaintiff's appeal was partially granted at the first level of review. In Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005), the Ninth Circuit held that an inmate need not exhaust further levels of review once he has either (1) been granted relief and "received all `available' remedies at an intermediate level of review" or (2) been "reliably informed by an administrator that no remedies are available." Id. at 935. The Ninth Circuit reached this result even though the prison system had a third-level appeal that was never utilized in Brown's instance.
In this case, Plaintiff's appeal was partially granted at the first level. Prison officials stated that they would investigate the matter. Both Plaintiff's appeal and his federal court complaint raised issues other than those relating to an investigation into the misconduct of prison officials. Because Plaintiff's appeal also requested proper medical care, the grant of an investigation did not provide Plaintiff with all available remedies. See Brown, 422 F.3d at 941. The availability of further remedies is also supported by the fact that Plaintiff was invited to appeal the first level finding to the second level and Plaintiff did file an appeal to the second level. See id. at 941-42. Finally, Plaintiff was never informed that the requested investigation took place, had been completed, and/or that it resulted in disciplinary action against Defendants. See id. at 942. Thus, the court cannot find that the partial grant of Plaintiff's appeal at the first level satisfies the exhaustion requirement.
ORDER
The court finds that Plaintiff's inmate appeals did not exhaust the claims at issue in this action. Accordingly, the court HEREBY ORDERS that:1. Defendants' motions to dismiss are GRANTED; and
2. This action is DISMISSED without prejudice.
IT IS SO ORDERED.