Opinion
No. 05-CV-586-PHX-FJM.
May 5, 2006
ORDER
Plaintiff claims, pursuant to 42 U.S.C. § 1983, that while he was incarcerated at the Durango Jail in Phoenix, Arizona, defendants violated his Eighth Amendment rights by using excessive force ("count I"), and violated his Fourteenth Amendment rights by failing to provide him with medical treatment ("count II"). Defendants move to dismiss count II for the failure to exhaust administrative remedies. We have before us defendants' motion to dismiss count II (doc. 17), plaintiff's response (doc. 20), defendants' reply (doc. 26), plaintiff's further opposition (doc. 28), and defendants' motion to strike plaintiff's further opposition (doc. 30). Plaintiff did not respond to defendants' motion to strike and the time for filing a response has expired.
The Prison Litigation Reform Act provides 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). The Maricopa County Sheriff's Office, which operates the Durango Jail, has implemented a comprehensive grievance system, which includes a multi-tiered administrative review process. Motion to Dismiss, Attachment A (Inmate Grievance Procedure); Reply, Exhibit 2 (Rules and Regulations for Inmates). An inmate must complete each level of the administrative process in order to have fully exhausted his remedies.
The process allows an inmate to proceed with an appeal even if the institution is unresponsive to a grievance. With regard to a non-medical grievance, if an inmate does not receive a response after 9 calendar days, he may file an Institutional Grievance Appeal with the Jail Commander. Rules and Regulations for Inmates at 12. With regard to a medical grievance, if an inmate does not receive a response after 9 calendar days, he may submit a Grievance Appeal Form to the Nursing Supervisor. Id. at 17.
Plaintiff filed two separate grievances requesting medical treatment, and grieving the failure to provide medical treatment.Response, Exhibits 1-2. Plaintiff contends that defendants never responded to either grievance. Because plaintiff could have nonetheless filed an appeal pursuant to the grievance procedure, and he does not contend that he attempted to and was prevented from doing so by the institution, he failed to exhaust his administrative remedies. Accordingly, IT IS ORDERED GRANTING defendants' motion to dismiss count II (doc. 17).
In our order dated March 29, 2006 (doc. 27), we withdrew the reference to the Magistrate Judge as to defendants' motion to dismiss count II. Defendants' motion to strike relates to defendants' motion to dismiss count II and is ready for consideration. Accordingly, IT IS ORDERED WITHDRAWING the reference to the Magistrate Judge as to defendants' motion to strike (doc. 30). All other matters in this action shall remain with the Magistrate Judge for disposition as appropriate.
After defendants filed their reply, plaintiff filed a "further opposition to defendants['] motion to dismiss" (doc. 28). A sur-reply such as this is impermissible absent leave of the court. See LRCiv 7.2. Accordingly, IT IS ORDERED GRANTING defendants' motion to strike plaintiff's further opposition (doc. 30).