Gregory Gene Lewis v. Orry Marciano et al

Filing 5

MEMORANDUM DECISION AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the dat e of this Memorandum and Order within which to file a First Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Plaintiff is further a dvised that is he no longer wishes to pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiffs convenience. (See document for further details). (Attachments: # 1 Notice of Dismissal Form, # 2 Civil Rights Complaint Form) (mr)

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
GREGORY GENE LEWIS,

11

Case No. EDCV 17-0181 SVW (SS)

Plaintiff,

12

MEMORANDUM DECISION AND ORDER

v.

13

DISMISSING COMPLAINT WITH

ORRY MARCIANO, et al.,

14

LEAVE TO AMEND

Defendants.

15
16
17

I.

18

INTRODUCTION

19
On February 1, 2017, Gregory Gene Lewis (“Plaintiff”), a

20
21

California

22

complaint pursuant to the Americans with Disabilities Act, 42

23

U.S.C. §§ 12101 et seq. (“ADA”); the Civil Rights Act, 42 U.S.C.

24

§ 1983; and the California Government Claims Act, Cal. Gov’t Code

25

§§ 905 et seq. (“CGCA”).1

26
27
28

state

prisoner

proceeding

pro

se,

filed

a

civil

(Dkt. No. 1).

The short title “Government Claims Act” has been used
interchangeably in California cases with the title “Tort Claims
Act” to refer to the statutory scheme for presenting claims for
money damages against state and local governmental entities.
1

1

Congress mandates that district courts perform an initial

2

screening of complaints in civil actions where a prisoner seeks

3

redress

4

§ 1915A(a). This Court may dismiss such a complaint, or any portion

5

thereof,

6

frivolous or malicious, (2) fails to state a claim upon which

7

relief can be granted, or (3) seeks monetary relief from a defendant

8

who is immune from such relief.

9

also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000)

10

(en banc). For the reasons stated below, the Complaint is DISMISSED

11

with leave to amend.2

from

a

governmental

before

service

of

entity

process

or

if

employee.

the

28

complaint

U.S.C.

(1)

is

28 U.S.C. § 1915A(b)(1-2); see

12
13

II.

14

ALLEGATIONS OF THE COMPLAINT

15
16

Plaintiff

sues

three

Chuckawalla

State

Prison

(“CSP”)

17

employees:

18

physician” (“Marciano”); (2) Ms. Beatres, a nurse (“Beatres”); and

19

(3) Kimberly Seibel, the warden (“Seibel”).

20

sued in both their individual and official capacities.

21

(“Compl.”) at 3).

22

\\

23

\\

24

26

However, because the California Supreme Court has expressed a
preference for the title “Government Claims Act,” the Court will
adopt that usage. See City of Stockton v. Superior Court, 42 Cal.
4th 730, 741-42 (2007).

27

2

25

28

(1) Orry Marciano, a “physician assistant/primary care

All Defendants are
(Complaint

A magistrate judge may dismiss a complaint with leave to amend
without the approval of a district judge. See McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).
2

1

Plaintiff alleges that he has been disabled for the past

2

twelve years following a gunshot wound to the leg.

3

As a result of his injury, Plaintiff walks with a limp and needs

4

to use a cane.

5

away from him and nurse Beatres “denied [Plaintiff’s] disability”

6

by refusing to return it.

(Id.).

(Id. at 6).

However, prison staff took Plaintiff’s cane

(Id. at 5).

7
8

In 2016, CSP staff assigned Plaintiff to work as a kitchen

9

“lineback,” which requires him to carry heavy pans and trays and

10

push heavy carts.

11

is sixty-three years old), this job is difficult for Plaintiff to

12

perform.

13

supervisory staff “ignored the operational procedures” in assigning

14

him this job.

Clinic

(Id.).

staff,

In light of his disability and age (he

correctional

officers,

and

the

cook

(Id.).

15
16

At

some

unidentified

time,

Marciano,

Plaintiff’s

primary

17

health care provider, increased Plaintiff’s dosage of Simvastatin

18

from 20 to 40 milligrams, which Plaintiff believes caused him to

19

suffer a mild stroke and heart failure.3

20

collapsed and was taken to the hospital to receive treatment for

21

the stroke.

22

been

23

deteriorated

24

delayed.”

25
26
27
28

(Id. at 6).

physically

and

because

Plaintiff

Following this incident, Plaintiff has

mentally
his

(Id. at 5-6).

traumatized.

medical

needs

have

His
been

body

“denied

has
and

(Id.).

According to an attachment to the Complaint, Simvastatin “reduces
levels of ‘bad’ cholesterol . . . and triglycerides in the blood,
while increasing levels of ‘good’ cholesterol. . . . Simvastatin
is also used to lower the risk of stroke, heart attack, and other
heart complications . . . .”
(Compl. at 18) (continuous
pagination).
3

3

1

The only allegation against Warden Seibel is that “she is not

2

doing her responsibility to instruct or educate her staff to

3

acknowledge inmates that are under the [ADA].”

(Id. at 5).

4
5

Plaintiff

claims
of

that

[his]

Defendants’

disability”

actions

6

“discrimination

7

Armstrong v. Davis.4

8

Defendants violated his constitutional rights by subjecting him to

9

“cruel and unusual punishment” and by “delaying” his “medical needs

10

[sic].” (Id. at 5-6). In addition, Plaintiff asserts that Marciano

11

is liable for “negligence [in] prescribing medicine that cause[d]

12

mild stroke [sic] and heart failure . . . .”

13

Plaintiff alleges, without further explanation or citation, that

14

Defendants violated Title 15 of the California Code of Regulations.

15

(Id.).

16

injunctive relief. (See id. at 5-6).

(Id. at 5).

under

the

constituted
ADA,

citing

Plaintiff also contends that

(Id.).

Finally,

The Complaint does not specifically request monetary or

17
18

III.

19

DISCUSSION

20
21

Under

28

U.S.C.

§

1915A(b),

the

Court

must

dismiss

the

22

Complaint due to pleading defects.

23

a pro se litigant leave to amend his defective complaint unless

24

4

25
26
27
28

However, the Court must grant

Plaintiff does not provide a case citation, but is presumably
referring to Armstrong v. Davis, 275 F.3d 849, 879 (9th Cir. 2001),
abrogated on other grounds by Johnson v. California, 543 U.S. 499,
504-05 (2005); see also Nordstrom v. Ryan, 762 F.3d 903, 911 (9th
Cir. 2014) (recognizing partial abrogation). Armstrong affirmed,
in part, an injunction requiring the California Department of
Corrections to provide ADA training to its staff and to track
inmates with disabilities. Armstrong, 275 F.3d at 875-76.
4

1

“it is absolutely clear that the deficiencies of the complaint

2

could not be cured by amendment.”

Akhtar v. Mesa, 698 F.3d 1202,

3

1212

and

4

omitted).

5

clear” that at least some of the defects of Plaintiff’s Complaint

6

could not be cured by amendment.

7

DISMISSED with leave to amend.

(9th

Cir.

2012)

(citation

internal

quotation

marks

For the reasons discussed below, it is not “absolutely

The Complaint is therefore

8
9

A.

The Complaint Violates Federal Rule of Civil Procedure 8

10
11

Federal Rule of Civil Procedure 8(a)(2) requires that a

12

complaint contain “‘a short and plain statement of the claim

13

showing that the pleader is entitled to relief,’ in order to ‘give

14

the defendant fair notice of what the . . . claim is and the

15

grounds upon which it rests.’”

16

550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)).

17

may be violated when a pleading “says too little,” and “when a

18

pleading says too much.”

19

Cir. 2013) (emphasis in original).

Bell Atlantic Corp. v. Twombly,
Rule 8

Knapp v. Hogan, 738 F.3d 1106, 1108 (9th

20
21

Here, the Complaint violates Rule 8 because Plaintiff does

22

not clearly identify the nature of each of the legal claims he is

23

bringing, the specific facts giving rise to each claim, or the

24

specific

25

brought.

26

respond to the Complaint.

27

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (a

28

complaint violates Rule 8 if a defendant would have difficulty

Defendant

or

Defendants

against

whom

each

claim

is

Without more specific information, Defendants cannot
See Cafasso, U.S. ex rel. v. Gen.

5

1

understanding and responding to the complaint).

2

Plaintiff is not required to provide evidence supporting his claims

3

at this stage of the litigation, the exhibits attached to the

4

Complaint appear unnecessary.

5

state

6

Accordingly, the Complaint is dismissed, with leave to amend.

what

relief

Moreover, because

Additionally, the Complaint must

Plaintiff

is

seeking

by

this

action.

7
8

B.

Plaintiff Fails To State A Claim Under the ADA

9
10

Plaintiff fails to state a claim under the ADA, which broadly

11

prohibits “public entities” from discriminating against disabled

12

individuals in the provision of public services.

13

of Lomita, 766 F.3d 1098, 1101 (9th Cir. 2014); see also Castle v.

14

Eurofresh, Inc., 731 F.3d 901, 910 (9th Cir. 2013) (“Title II [of

15

the ADA] applies to the operation of state prisons.”).

16

compliance with the Act, “Title II authorizes suits by private

17

citizens for money damages against public entities that violate

18

§ 12132.”

Fortyune v. City

To achieve

United States v. Georgia, 546 U.S. 151, 154 (2006).

19
20

To state a claim under § 12132, a plaintiff must allege that:

21
22

“(1) he is an individual with a disability; (2) he is

23

otherwise qualified to participate in or receive the

24

benefit of some public entity’s services, programs, or

25

activities;

26

participation in or denied the benefits of the public

27

entity’s

28

otherwise discriminated against by the public entity;

(3)

services,

he

was

programs,

6

either

or

excluded

activities,

from

or

was

1

and

(4)

such

exclusion,

denial

of

benefits,

2

or

discrimination was by reason of [his] disability.”

3
4

Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010)

5

(quoting McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir.

6

2004)).

7

must

8

substantially limits his life activities.

9

U.S. 624, 631 (1998); see also Weaving v. City of Hillsboro, 763

10

F.3d 1106, 1111 (9th Cir. 2014) (definition of disability under

11

the ADA “‘shall be construed in favor of broad coverage’”) (quoting

12

42 U.S.C. § 12102(4)(A)).

To demonstrate a disability under the ADA, a plaintiff

show

that

he

has

been

diagnosed

with

a

condition

that

Bragdon v. Abbott, 524

13
14

“The ADA prohibits discrimination because of disability, not

15

inadequate treatment for disability.”

Simmons, 609 F.3d at 1022

16

(emphasis added).

17

under the ADA.

18

(7th Cir. 1996) (“[T]he Act would not be violated by a prison’s

19

simply failing to attend to the medical needs of its disabled

20

prisoners . . . The ADA does not create a remedy for medical

21

malpractice.”); Elbert v. N.Y. State Dept. of Corr. Servs., 751 F.

22

Supp. 2d 590, 595 (S.D. N.Y. 2010) (“Courts routinely dismiss ADA

23

suits by disabled inmates that allege inadequate medical treatment,

24

but do not allege that the inmate was treated differently because

25

of his or her disability.”) (citing cases); Carrion v. Wilkinson,

26

309 F. Supp. 2d 1007, 1016 (N.D. Ohio 2004) (complaint alleging

27

that prison failed to provide inmate with diabetic diet did not

28

state ADA claim in the absence of allegations that prison officials

Insufficient medical care does not state a claim

Id.; see also Bryant v. Madigan, 84 F.3d 246, 249

7

1

denied the inmate “the benefits of any services, programs, or

2

activities provided for other non-disabled inmates, or that they

3

subjected him to discrimination because of his diabetes”).

4
5

Plaintiff’s

vague

and

conclusory

accusations

of

6

“discrimination” do not state a claim under the ADA.

7

states that Marciano “discriminat[ed]” against “his disability” by

8

“prescribing [the] wrong medicine,” thereby causing him to suffer

9

a mild stroke.

(Compl. at 5).

Plaintiff

This is a claim for inadequate

10

medical care, not discrimination, and does not identify the “public

11

services” to which Plaintiff was denied access because of his

12

disability.

13
14

Plaintiff

further

claims

that

Beatres

“denied

[his]

15

disability” by failing to “accomodat[e] [his] request” for the

16

return of his cane.

17

devices to persons unable to physically function without them” may

18

violate Title II where the deprivations force disabled prisoners

19

“into the vulnerable position of being dependent on other inmates

20

to enable them to obtain basic services, such as meals, mail,

21

showers, and toilets.”

22

Cir. 2013).

23

showing that the denial of a cane forced him to rely on the

24

assistance of other inmates to get to food, showers, toilets, or

25

other prison services.

26

works in the kitchen strongly suggest that he is not dependent on

27

a cane to move around the prison.

(Id.).

The “denial of mobility-assistance

Armstrong v. Brown, 732 F.3d 955, 960 (9th

Here, however, Plaintiff does not allege any facts

Indeed, the allegations that Plaintiff

28
8

1

Finally, Plaintiff’s summary claim that Seibel failed to train

2

her

staff

to

“acknowledge”

prisoners

protected

under

the

ADA

3

similarly does not state an ADA claim.

4

set out a standard for failure-to-train claims under the ADA.”

5

Green v. Tri-Cty. Metro. Transp. Dist. of Oregon, 909 F. Supp. 2d

6

1211, 1220 (D. Or. 2012).

7

failure to train claims are cognizable under the ADA, Plaintiff

8

has not shown how Seibel’s alleged failure to train resulted in

9

discrimination depriving him of the ability to participate in a

10

program or service offered to non-disabled prisoners. Accordingly,

11

Plaintiff’s ADA claims are dismissed, with leave to amend.

“The Ninth Circuit has not

Even assuming, without deciding, that

12
13

C.

Plaintiff Fails To State A Cruel And Unusual Punishment Claim

14
15

Plaintiff broadly claims that he was subjected to “cruel and

16

unusual punishment” causing damage to his body in violation of his

17

constitutional rights.

18

which acts form the basis of Plaintiff’s constitutional claim,

19

which Defendant or Defendants committed them, or what specific harm

20

they caused.

(Compl. at 6).

It is not clear exactly

21
22

Infliction of suffering on prisoners that is “totally without

23

penological justification” violates the Eighth Amendment.

Rhodes

24

v. Chapman, 452 U.S. 337, 346 (1981).

25

wanton infliction of pain . . . constitutes cruel and unusual

26

punishment forbidden by the Eighth Amendment.”

27

475 U.S. 312, 319 (1986) (internal quotation marks and citation

28

omitted).

Only “the unnecessary and

Whitley v. Albers,

The punishment must constitute “shocking and barbarous
9

1

treatment.”

2

Grummett v. Rushen, 779 F.2d 491, 494 n.1 (9th Cir.

1985).

3
4

It is possible that Plaintiff may believe that his work

5

assignment as a kitchen lineman constitutes “cruel and unusual

6

punishment” because it requires him to lift heavy trays and pans

7

and push heavy carts.

8

provide any facts about this work detail, or Plaintiff’s alleged

9

inability

10

establish

11

penological justification.

12

explain how any of the named Defendants might be liable for any

13

pain Plaintiff suffered as a consequence of his job.

14

Plaintiff’s “cruel and unusual” punishment claims are dismissed,

15

with leave to amend.

to

perform

“shocking

However, the Complaint simply does not

the

tasks

required

and

barbarous

of

him,

treatment”

that

would

without

any

Additionally, the Complaint does not

Accordingly,

16
17

D.

Plaintiff Fails To Allege A Deliberate Indifference Claim

18
19

It is also possible that Plaintiff may be attempting to state

20

an Eighth Amendment claim based on his allegedly inadequate medical

21

care.

22

defendant was “deliberately indifferent” to his “serious medical

23

needs.”

24

also West v. Atkins, 487 U.S. 42, 49 (1988).

25

“serious medical need,” the prisoner must demonstrate that “failure

26

to treat a prisoner’s condition could result in further significant

27

injury or the ‘unnecessary and wanton infliction of pain.’”

28

439 F.3d at 1096 (citation omitted).

To state such a claim, a prisoner must demonstrate that the

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

10

To establish a

Jett,

1

To establish “deliberate indifference” to a serious medical

2

need, a plaintiff must demonstrate: “(a) a purposeful act or

3

failure to respond to a prisoner’s pain or possible medical need,

4

and (b) harm caused by the indifference.”

5

indifference “may appear when prison officials deny, delay or

6

intentionally interfere with medical treatment, or it may be shown

7

by the way in which prison physicians provide medical care.”

8

(citations omitted).

9

aware

of

a

serious

(Id.).

Deliberate

(Id.)

The defendant must have been subjectively
risk

of

harm

10

consciously disregarded that risk.

11

to

Plaintiff

and

must

have

See Farmer v. Brennan, 511 U.S.

825, 828 (1994).

12
13

The Complaint fails to state a deliberate indifference claim.

14

First, the Complaint’s vague language fails to establish that

15

Plaintiff had a serious medical need.

16

while Plaintiff may have presented with high cholesterol, a not

17

uncommon

18

Simvastatin, Plaintiff does not allege any facts showing that he

19

had symptoms of any other serious medical condition requiring

20

immediate attention.

21

allege any facts showing why his limp from a twelve-year old injury

22

was so serious that the failure to treat it would likely result in

23

significant

24

infliction of pain.

condition

which

Marciano

With respect to Marciano,

attempted

to

address

with

With respect to Beatres, Plaintiff does not

additional

injury

or

the

unnecessary

and

wanton

25
26

Second, the Complaint does not adequately allege that Marciano

27

or Beatres were subjectively aware of Plaintiff’s serious medical

28

need and refused to give him medical attention, putting him at risk
11

1

of

injury.

Marciano

2

cholesterol and risk of stroke with Simvastatin, and when Plaintiff

3

collapsed in the kitchen due to a “mild stroke” and heart failure,

4

he was immediately sent by ambulance to the hospital.

5

there are no facts showing that Plaintiff’s limp was so serious

6

that Beatres must have known it constituted a serious medical

7

condition

8

Plaintiff claims that Beatres did not return his cane, he does not

9

explain how Beatres even knew that he had a limp.

requiring

attempted

immediate

to

treat

attention.

Plaintiff’s

high

Similarly,

Indeed,

although

10
11

Third, the Complaint does not show that Plaintiff suffered

12

any

harm

from

Defendants’

13

Plaintiff’s claims that the increased dosage of Simvastatin that

14

Marciano prescribed “caused” his stroke and heart failure are

15

contradicted by the exhibits Plaintiff attached to the Complaint

16

that explain that Simvastatin is used to prevent strokes and heart

17

failure.

18

give him a cane, but does not allege any specific harm that he

19

suffered as a result.

20

is attempting to assert deliberate indifference claims, the claims

21

must be dismissed, with leave to amend.

(Compl. at 18).

alleged

acts

or

failures

to

act.

Plaintiff alleges that Beatres did not

Accordingly, to the extent that Plaintiff

22
23
24

E.

Plaintiff Fails To Allege Personal Participation By Warden
Seibel In The Alleged Civil Rights Violations

25
26

To demonstrate a civil rights violation, a plaintiff must show

27

either direct, personal participation, or some sufficient causal

28

connection

between

the

official’s
12

conduct

and

the

alleged

1

constitutional violation.

2

See Starr v. Baca, 652 F.3d 1202, 1205-

06 (9th Cir. 2011).

3
4

Plaintiff’s allegations against Warden Seibel are conclusory

5

and vague.

Plaintiff merely states that Warden Seibel did not

6

fulfill her responsibility to “instruct[] and educat[e]” CSP staff

7

about the ADA.

8

any constitutional right that was violated by Seibel’s actions,

9

much less show how Seibel personally and directly participated in

(Compl. at 3).

This allegation does not identify

10

the violation.

11

connection between Seibel’s purported failure to train and the

12

actions taken by Marciano and Beatres.

13

Circuit has ruled that due to the comprehensive remedial scheme

14

created by the ADA, a plaintiff cannot bring an action under 42

15

U.S.C. § 1983 against a state official in his individual capacity

16

to vindicate rights created by Title II of the ADA.

17

Thomas,

18

Plaintiff’s claims against Seibel are dismissed, with leave to

19

amend.

20

claims without a legal and factual basis.

288

Plaintiff does not allege any facts establishing a

F.3d

1145,

1156

(9th

Cir.

Furthermore, the Ninth

2002).

Vinson v.

Accordingly,

Plaintiff is expressly cautioned that he must not allege

21
22
23

F.

Plaintiff Fails To State A Claim For Violation Of Prison
Protocols And Regulations

24
25

Plaintiff appears to claim that Defendants violated his due

26

process rights when they failed to comply with certain unidentified

27

state prison policies, procedures, rules, or regulations.

28

at 6).

(Compl.

However, the mere violation of state prison regulations is
13

1

not actionable under § 1983.

2

484 (1995).

3

allege the violation of a right secured by the Constitution . . .

4

committed by a person acting under color of state law.”

5

Atkins, 487 U.S. 42, 48 (1988).

6

Defendants violated a right secured under the Constitution simply

7

by

8

regulations.

9

dismissed, with leave to amend.

violating

See Sandin v. Conner, 515 U.S. 472,

To state a claim under § 1983, “a plaintiff must

administrative
(Compl. at 6).

West v.

Plaintiff fails to show how

“operational

procedures”

or

Accordingly, the Complaint must be

10
11

G.

Plaintiff Fails To State A Claim For Negligence

12
13

Plaintiff may be attempting to bring a state law tort claim

14

for

medical

negligence

against

Marciano

for

15

Simvastatin prescription.

16

state law cause of action in tort.

17

not satisfy the procedural requirements for alleging state law tort

18

claims against governmental actors.

(See Compl. at 6).

changing

his

Negligence is a

However, the Complaint does

19
20

Under the California Government Claims Act, a plaintiff may

21

not bring an action for damages against a public employee or entity

22

unless he first presents a written claim to the governmental entity

23

within six months of the incident.

24

Cnty., Dept. of Public Social Servs., 237 F.3d 1101, 1111 (9th Cir.

25

2001) (CGCA requires the “timely presentation of a written claim

26

and the rejection of the claim in whole or in part” before a

27

plaintiff can file suit); see also Cal. Gov’t Code § 945.4 (no suit

28

for money damages may be brought against a public entity until a
14

See Mabe v. San Bernadino

1

written claim is presented to the public entity, and is acted upon

2

or rejected by the board).

3

asserting a state law negligence claim, the Complaint must allege

4

that Plaintiff has complied with the CGCA’s claims presentation

5

requirement, or explain why compliance should be excused.5

6

v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995).

7

Plaintiff does not allege compliance with the claims presentation

8

requirement of the CGCA.

9

with leave to amend.

To the extent that Plaintiff is

Mangold

Accordingly, the Complaint is dismissed,

10
11

H.

12

It

Is

Unclear

Whether

Plaintiff

Has

Exhausted

His

Administrative Remedies

13
14

Plaintiff affirmatively states in the Complaint that he did

15

not file a grievance relating to his current Complaint.

16

at 2).

Plaintiff explains that he “was not aware on [sic] how they

17

abused

[his]

18

violated [his] constitutional right [sic] by discriminating [his]

19

disability (ADA) [sic].”

20

that the grievance procedure is “completed.”

21

\\

22

\\

rights

until

finally

(Id.).

[he]

discovered

(Compl.

that

they

However, Plaintiff also states
(Id.).

23
The CGCA’s claim presentation requirement is separate from, and
is not satisfied by, internal prison grievance processes.
See
Hendon v. Ramsey, 528 F. Supp. 2d 1058, 1069–70 (S.D. Cal. 2007)
(“Although Plaintiff has demonstrated successfully that he utilized
the prison grievance process to exhaust his federal claims by
filing an inmate appeal, and has attached documentation in the form
of his CDC 602 form and administrative responses, these documents
do not satisfy the CTCA [California Tort Claims Act] with respect
to his state law negligence claims.”).
5

24
25
26
27
28

15

1

The Prison Litigation Reform Act of 1995 (the “PLRA”), 42

2

U.S.C. § 1997e(a), requires a prisoner to exhaust all available

3

administrative remedies before suing over prison conditions in

4

federal court.

5

also 42 U.S.C. § 1997e(a) (“No action shall be brought . . . until

6

such administrative remedies as are available are exhausted.”).

7

“[F]ederal courts may not consider a prisoner’s civil rights claim

8

when a remedy was not sought first in an available administrative

9

grievance procedure.”

Booth v. Churner, 532 U.S. 731, 733-34 (2001); see

Panaro v. City of North Las Vegas, 432 F.3d

10

949, 954 (9th Cir. 2005).

11

applies to ADA claims brought by prisoners.

12

Corr. Ctr., 502 F.3d 1056, 1061 (9th Cir. 2007) (“[N]othing in the

13

ADA

14

requirement.”).

15

of the prison’s grievance process “as long as some action can be

16

ordered in response to the complaint,” Brown v. Valoff, 422 F.3d

17

926, 934 (9th Cir. 2005), regardless of the ultimate relief offered

18

through such procedures.

. . .

carves

out

The PLRA’s exhaustion requirement also

an

exception

to

O’Guinn v. Lovelock

the

PLRA

exhaustion

A prisoner must pursue a remedy through all levels

Booth, 532 U.S. at 741.

19
20

While exhaustion is normally a precondition to suit, the PLRA

21

does

not

require

exhaustion

22

administrative

23

Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010).

24

Circuit require “a good-faith effort on the part of inmates to

25

exhaust a prison’s administrative remedies as a prerequisite to

26

finding remedies effectively unavailable.”

27

F.3d 1023, 1035 (9th Cir. 2012); see also Sapp, 623 F.3d at 823-24

28

(to fall within an exception to exhaustion requirement, “a prisoner

remedies

“when

‘effectively

16

circumstances

unavailable.’”

render
Sapp

v.

Courts in the Ninth

Albino v. Baca, 697

1

must show that he attempted to exhaust his administrative remedies

2

but was thwarted”).

3
4

“[T]he PLRA does not require that a prisoner’s federal court

5

complaint affirmatively plead exhaustion.”

6

F.3d 1217, 1223-24 (9th Cir. 2010) (citing Jones v. Bock, 549 U.S.

7

199,

8

affirmative defense that requires the defendant, following service

9

of the complaint, to prove that a plaintiff failed to exhaust his

10

administrative remedies by showing that “administrative remedies

11

were available and unused.”

12

“[a] prisoner’s concession to nonexhaustion is a valid ground for

13

dismissal, so long as no exception to exhaustion applies.”

14

v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).

15

matter, a prioner-plaintiff’s “personal lack of knowledge of the

16

law is insufficient to excuse” a failure to exhaust.

17

Unnamed Defendants, 2017 WL 1106024, at *7 (E.D. Cal. Mar. 23,

18

2017); see also Napier v. Laurel Cnty., Ky., 636 F.3d 218, 222 n.2

19

(6th Cir. 2011) (“A plaintiff’s failure to exhaust [under the PLRA]

20

cannot be excused by his ignorance of the law or the grievance

21

policy.”).

212-17

(2007)).

Generally,

failure

Nunez v. Duncan, 591

to

exhaust

Albino, 697 F.3d at 1035.

is

an

However,

Wyatt

As a general

Castro v.

22
23

Plaintiff is cautioned that if he failed to present any of

24

the

instant

claims

to

the

prison

25

grievance process before filing this lawsuit, Defendants may raise

26

the failure to exhaust as an affirmative defense and may seek

27

dismissal of any unexhausted claims.

28
17

through

the

administrative

1

IV.

2

CONCLUSION

3
4

For the reasons stated above, the Complaint is dismissed with

5

leave to amend.

If Plaintiff still wishes to pursue this action,

6

he is granted thirty (30) days from the date of this Memorandum

7

and Order within which to file a First Amended Complaint.

8

amended complaint, the Plaintiff shall cure the defects described

9

above.

Plaintiff

shall

not

include

new

defendants

In any

or

new

10

allegations that are not reasonably related to the claims asserted

11

in the original complaint.

12

shall be complete in itself and shall bear both the designation

13

“First Amended Complaint” and the case number assigned to this

14

action.

15

complaint in this matter.

The First Amended Complaint, if any,

It shall not refer in any manner to any previously filed

16
17

In

any

amended

complaint,

Plaintiff

should

confine

his

18

allegations to those operative facts supporting each of his claims.

19

Plaintiff

20

Procedure 8(a), all that is required is a “short and plain statement

21

of the claim showing that the pleader is entitled to relief.”

22

Plaintiff is strongly encouraged to utilize the standard civil

23

rights complaint form when filing any amended complaint, a copy of

24

which is attached.

25

identify the nature of each separate legal claim and make clear

26

what specific factual allegations support each of his separate

27

claims.

28

concise and to omit irrelevant details.

is

advised

that

pursuant

to

Federal

Rule

of

Civil

In any amended complaint, Plaintiff should

Plaintiff is strongly encouraged to keep his statements

18

It is not necessary for

1

Plaintiff to cite case law, include legal argument, or attach

2

exhibits at this stage of the litigation. Plaintiff is also advised

3

to omit any claims for which he lacks a sufficient factual basis.

4
5

Plaintiff is explicitly cautioned that failure to timely file

6

a First Amended Complaint or failure to correct the deficiencies

7

described above, will result in a recommendation that this action

8

be dismissed with prejudices for failure to prosecute and obey

9

court orders pursuant to Federal Rule of Civil Procedure 41(b).

10

Plaintiff is further advised that is he no longer wishes to pursue

11

this action,

he may

12

Dismissal

in

accordance

13

41(a)(1).

A form Notice of Dismissal is attached for Plaintiff’s

14

convenience.

voluntarily dismiss it by filing a Notice of
with

Federal

Rule

of

Civil

Procedure

15
16

DATED:

July 7, 2017

17
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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20
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22
23
24
25
26
27
28
19

1

NOTICE

2
3

Reports and Recommendations are not appealable to the Court

4

of Appeals, but may be subject to the right of any party to file

5

objections as provided in the Local Rules Governing the Duties of

6

Magistrate Judges and review by the District Judge whose initials

7

appear in the docket number.

8

Federal Rules of Appellate Procedure should be filed until entry

9

of the judgment of the District Court.

No notice of appeal pursuant to the

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12
13
14
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25
26
27
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