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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1 2 3 4 5 6 7 8 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 18 19 20 21 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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