Scott v. Galloway et al

Filing 17

ORDER signed by Magistrate Judge Dale A. Drozd on 4/4/2012 ORDERING that plaintiff's 16 motion to proceed IFP is DENIED; and this action is DISMISSED without prejudice for failure to exhaust administrative remedies prior to bringing this action. CASE CLOSED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS SCOTT,

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Plaintiff,

No. CIV S-12-0055 DAD P

vs.
DR. GALLOWAY et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915.

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Plaintiff has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. §

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636(c). (See Doc. No. 12.)

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PLAINTIFF’S COMPLAINT

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In the present case, plaintiff has identified Dr. Galloway, Dr. Smith, Dr. Heatley,

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Dr. Soltanian-Zadeh, and Dr. Hawkins as the defendants. In his complaint, plaintiff alleges that

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the defendants have denied him adequate medical care in connection with his treatment for

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Hepatitis C. Specifically, plaintiff alleges that the defendants have refused to provide him with a

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new medication regimen recently approved by the FDA. In terms of relief, plaintiff requests

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declaratory relief, injunctive relief and monetary damages. (Compl. at 3-3b & Exs.)
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EXHAUSTION OF ADMINISTRATIVE REMEDIES

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By the Prison Litigation Reform Act of 1995 (“PLRA”), Congress amended 42

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U.S.C. § 1997e to provide that “[n]o action shall be brought with respect to prison conditions

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under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,

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prison, or other correctional facility until such administrative remedies as are available are

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exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement “applies to all inmate suits about

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prison life, whether they involve general circumstances or particular episodes, and whether they

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allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

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The United States Supreme Court has ruled that exhaustion of prison

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administrative procedures is mandated regardless of the relief offered through such procedures.

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Booth v. Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against

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reading futility or other exceptions into the statutory exhaustion requirement. Id. at 741 n.6.

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Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA

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exhaustion requirement by filing an untimely or otherwise procedurally defective administrative

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grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 90-93 (2006).

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In California, prisoners may appeal “any policy, decision, action, condition, or

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omission by the department or its staff that the inmate or parolee can demonstrate as having a

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material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, §

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3084.1(a). Most appeals progress through three levels of review. See id. § 3084.7. The third

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level of review constitutes the decision of the Secretary of the California Department of

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Corrections and Rehabilitation and exhausts a prisoner’s administrative remedies. See id. §

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3084.7(d)(3). A California prisoner is required to submit an inmate appeal at the appropriate

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level and proceed to the highest level of review available before filing suit. Butler v. Adams, 397

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F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).

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The PLRA exhaustion requirement is not jurisdictional but rather creates an
affirmative defense. See Jones v. Bock, 549 U.S.199, 216 (2007) (“[I]nmates are not required to
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specially plead or demonstrate exhaustion in their complaints.”); Wyatt v. Terhune, 315 F.3d

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1108, 1117-19 (9th Cir. 2003). The defendants bear the burden of raising and proving the

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absence of exhaustion. Wyatt , 315 F.3d at 1119. When the district court concludes that the

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prisoner has not exhausted administrative remedies on a claim, “the proper remedy is dismissal

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of the claim without prejudice.” Id. at 1120. See also Lira v. Herrera, 427 F.3d 1164, 1170 (9th

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Cir. 2005). On the other hand, “if a complaint contains both good and bad claims, the court

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proceeds with the good and leaves the bad.” Jones, 549 U.S. at 221.

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DISCUSSION
A prisoner’s concession to nonexhaustion is a valid ground for dismissal of an

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action. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). On plaintiff’s original form

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complaint filed with this court, Section I.B. asks “Is there a grievance procedure [at Mule Creek

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State Prison]?” Plaintiff has checked the “Yes” box. Section I.C. asks “Did you present the facts

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in your complaint for review through the grievance procedure?” Again, plaintiff has checked the

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“Yes” box. However, Section I.D.1-4 instructs plaintiff to “list the appeal number and the date

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and result of the appeal at each level of review. If you did not pursue a certain level of appeal,

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explain why.” In the space provided for plaintiff to list the appeal number and date and result of

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his inmate appeal at the third level of review, plaintiff has typed “Pending.” Finally, Section I.F.

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asks “If you did not present your claim for review through the grievance procedure, explain

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why.” Plaintiff has typed “Claim is pending, but matter is life threatening and requires urgent

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attention by the Court.” (Compl. at 1-2.)

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As noted above, the California Department of Corrections and Rehabilitation has

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an established administrative grievance system and a prescribed grievance process that plaintiff

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must complete prior to bringing a § 1983 action on his claims. See Vaden v. Summerhill, 449

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F.3d 1047, 1050-51 (9th Cir. 2006) (prisoner must exhaust administrative remedies prior to filing

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his complaint in federal court); McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002)

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(prisoner does not satisfy the exhaustion requirement with respect to the claims in his original
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complaint by exhausting administrative remedies during the course of litigation). If a court

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concludes, as it does here, that a prisoner has not exhausted administrative remedies, “the proper

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remedy is dismissal of the claim without prejudice.” Wyatt, 315 F.3d at 1120. Given plaintiff’s

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acknowledgment of non-exhaustion, the undersigned will dismiss this action without prejudice.1

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 16) is denied; and

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2. This action is dismissed without prejudice for failure to exhaust administrative

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remedies prior to bringing this action.
DATED: April 4, 2012.

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DAD:9
scot0055.fte

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Plaintiff is informed that dismissal without prejudice will permit him to file a new
action upon exhaustion of the prison grievance process through its completion. If plaintiff
decides to file a new action, he should not include this case number on the new complaint. In
addition, the new complaint should be accompanied by a properly completed, updated
application to proceed in forma pauperis.
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