Opinion
No. CV 05-1690 PHX JAT (DKD).
November 29, 2005
MEMORANDUM AND ORDER
Pending before the Court is Defendants' Motion to Dismiss Plaintiff's complaint. (Doc. #15).
Defendants Herring and Simmons have been dismissed from this matter.
BACKGROUND
Plaintiff, who has been deemed a vexatious litigant and who must seek leave to file section 1983 complaints in the Court, filed a motion seeking leave to file a civil rights complaint on June 6, 2005. On July 5, 2005, Plaintiff was granted leave to file his complaint (Doc. #4). The complaint seeks compensatory and punitive damages and injunctive relief from Defendants Tucker and Freeland, sued in their individual and official capacities. Id.
On July 5, 2005, the Court granted leave to file the complaint. The Court dismissed two of the claims stated in the amended complaint and ordered Defendants Tucker and Freeland to answer Plaintiff's allegation that they violated Plaintiff's constitutional rights by failing to protect him from other inmates. See Doc. #5. In the order issued July 5, 2005, Plaintiff was ordered to notify the Court if his address changed.See id. Plaintiff was also notified that, if he was released from custody, Plaintiff was obligated to pay the filing fee for this section 1983 action within 120 days of the date he was released or, absent a showing of good cause, Plaintiff's action would be dismissed. See id.
Defendants were served with the amended complaint. See Doc. #9 Doc. #10. On July 30, 2005, Plaintiff was released from the custody of the Arizona Department of Corrections. See Doc. #13.
On September 30, 2005, Defendants filed a Motion to Dismiss Plaintiff's complaint (Doc. #15). Defendants argue that the only remaining claim stated in the complaint must be dismissed pursuant to 42 U.S.C. § 1997e(a) because Plaintiff failed to exhaust his administrative remedies regarding this claim. Defendants also contend that Plaintiff's claim for injunctive relief is moot because Plaintiff has been released from custody, and that Plaintiff's claim for monetary damages from Defendants named in their official capacities is barred by the Eleventh Amendment.
Plaintiff filed a response to the motion to dismiss on October 26, 2005 (Doc. #20), and Defendants filed a Reply to Plaintiff's Response to Defendants' Motion to Dismiss (Doc. #21).
DISCUSSION
A. Standard for granting motion to dismiss
When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must take the factual allegations of the complaint as true and construe them in the light most favorable to the plaintiff. See Galbraith v. County of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002); Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996). Additionally, pro se complaints are held to a less strict standard than those drafted by counsel. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976). It is not appropriate to dismiss a pro se prisoner's civil rights action unless it is "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Id.
B. Exhaustion of administrative remedies
Exhaustion of administrative remedies under the Prison Litigation Reform Act (" PLRA") is governed by 42 U.S.C. § 1997e(a). This statute provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). An inmate must exhaust available administrative remedies "irrespective of the forms of relief sought and offered through administrative avenues." Booth v. Churner, 532 U.S. 731, 741, n. 6, 121 S. Ct. 1819, 1825 n. 6 (2001).
The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes." Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992 (2002). A plaintiff must fully exhaust his administrative remedies before filing a section 1983 complaint.McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002). Additionally, the Court should not "read futility or other exceptions into statutory exhaustion requirements" where the statute provides for no such exceptions. Booth, 532 U.S. at 741, 121 S. Ct. at 1825.
Exhaustion is an affirmative defense; establishing exhaustion of administrative remedies under the PLRA is not a pleading requirement or a jurisdictional prerequisite. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 124 S. Ct. 50 (2003). Therefore, Defendants "have the burden of raising and proving the absence of exhaustion." Id. The failure to exhaust administrative remedies under the PLRA is treated as a matter in abatement and is properly raised in an unenumerated Rule 12(b) motion. See id. "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20. "If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id. at 1120.
Plaintiff asserts he did not grieve his claim that he was raped by another inmate and was denied proper medical care following this incident because he was told the issue was not grievable. The federal courts have concluded that an assertion that pursuing administrative remedies would be futile does not, standing alone, excuse an individual's failure to exhaust his administrative remedies prior to filing a section 1983 action. See, e.g., Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002);Giano v. Goord, 250 F.3D 150-51 (2d Cir. 2001). The evidence presented by Defendants indicates that there was an administrative process available to Plaintiff, which he previously utilized to grieve a claim similar to the claim presented in this matter, and that Plaintiff did not pursue his administrative remedies with regard to the endangerment claim stated in his complaint lodged June 6, 2005. Based on Plaintiff's failure to grieve this claim, the Court concludes that Plaintiff failed to exhaust his available administrative remedies prior to filing his complaint and it must be dismissed without prejudice pursuant to 42 U.S.C. § 1997e.
Additionally, to the extent that Defendants argue that Plaintiff's claims for monetary relief against them as individuals acting in their official capacities is barred by the Eleventh Amendment, Defendants are entitled to judgment as a matter of law regarding Plaintiff's claims for monetary relief.See, e.g., Hale v. State of Ariz., 993 F.2d 1387, 1399 (9th Cir. 1993); Owen v. Lash, 682 F.2d 648, 655 (7th Cir. 1982).
Conclusion
Plaintiff concedes that he did not exhaust his administrative remedies regarding the claim stated in his section 1983 complaint, and Defendants present evidence to the Court that administrative remedies were available to Plaintiff and that Plaintiff did, in fact, previously pursue an administrative grievance with regard to a claim similar to that stated in the complaint. Therefore, the Court concludes that Plaintiff's complaint as to the monetary damages sought from Defendants in their individual capacities must be dismissed without prejudice pursuant to section 1997e because Plaintiff failed to exhaust his administrative remedies regarding his claim prior to filing his section 1983 suit. Because Defendants acting in their official capacities are immune from a suit seeking monetary damages, Plaintiff's claims for monetary relief from Defendants acting in their official capacities are dismissed with prejudice. Additionally, because Plaintiff was released from custody following the filing of his complaint, Plaintiff's claims for injunctive relief must be dismissed as moot. See McQuillion v. Schwarzenegger, 369 F.3d 1091, 1095 (9th Cir. 2004); Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) . THEREFORE, IT IS ORDERED THAT Defendants' Motion to Dismiss (Docket No. 15) is GRANTED.
Plaintiff's complaint is hereby dismissed without prejudice with regard to his claims for monetary relief from Defendants acting in their individual capacities. Plaintiff's complaint is dismissed with prejudice with regard to Plaintiff's claims for injunctive relief and with regard to Plaintiff's claims for monetary relief from Defendants acting in their official capacties.