Dean v. Mack

Filing 23

Order by Hon. William Alsup granting 15 Motion to Dismiss. (Attachments: # 1 Certificate of Service)(tlS, COURT STAFF) (Filed on 12/4/2013)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 No. C 13-0128 WHA (PR) Plaintiff, For the Northern District of California United States District Court GREGORY DEAN, 11 ORDER GRANTING MOTION TO DISMISS 12 v. 13 DR. MACK, 14 (Docket No. 15) Defendant. 15 / 16 17 INTRODUCTION 18 Plaintiff, a California prisoner at Salinas Valley State Prison, filed this pro se civil rights 19 action under 42 U.S.C. 1983 complaining that defendant Dr. Mack did not provide adequate 20 medical care for plaintiff’s kidney stone in 2012. Defendant Dr. Richard Mack filed a motion 21 to dismiss the case on the grounds that plaintiff has not exhausted his administrative remedies. 22 Plaintiff has filed an opposition and defendants have filed a reply brief. Plaintiff then filed a 23 sur-reply (dkt. 22). For the reasons discussed below, the motion to dismiss is GRANTED. 24 25 26 ANALYSIS I. STANDARD OF REVIEW Nonexhaustion under § 1997e(a) is an affirmative defense. Jones v. Bock, 549 U.S. 199, 27 217-18 (2007). Defendants have the burden of raising and proving the absence of exhaustion, 28 and inmates are not required to specifically plead or demonstrate exhaustion in their complaints. 1 Id. at 215-17. 2 A nonexhaustion issue should be raised in an unenumerated Rule 12(b) motion rather 3 than in a motion for summary judgment. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 4 2003). In deciding a motion to dismiss for failure to exhaust nonjudicial remedies, the Court 5 may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. If the Court 6 concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is 7 dismissal without prejudice. Id. at 1120. 8 II. 9 ANALYSIS Defendants argue that plaintiff has failed to exhaust his administrative remedies. The Prison Litigation Reform Act (“PLRA”) provides that "[n]o action shall be brought with respect 11 For the Northern District of California United States District Court 10 to prison conditions under [42 U.S.C. 1983], or any other Federal law, by a prisoner confined 12 in any jail, prison, or other correctional facility until such administrative remedies as are 13 available are exhausted." 42 U.S.C. 1997e(a). Compliance with the exhaustion requirement is 14 mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 739- 15 40 & n.5 (2001). The administrative remedies need not meet federal standards, nor need they 16 be “plain, speedy and effective.” Porter, 534 U.S. at 524. 17 California provides its inmates and parolees the right to appeal administratively "any 18 departmental decision, action, condition or policy perceived by those individuals as adversely 19 affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available 20 administrative remedies within this system, a prisoner must proceed through several levels of 21 appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) 22 second level appeal to the institution head or designee, and (4) third level appeal to the Director 23 of the California Department of Corrections. Id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 24 1237 (S.D. Cal. 1997). This satisfies the administrative remedies exhaustion requirement under 25 § 1997e(a). Id. at 1237-38. 26 27 28 Defendant has shown that plaintiff did not exhaust any administrative appeals about defendant’s alleged failure to adequately treat plaintiff’s kidney stones in 2012. Defendant has 2 1 submitted evidence, undisputed by plaintiff, that prison officials log and track all administrative 2 appeals received from prisoners, and that prior to filing the instant action plaintiff did not file 3 any administrative appeals about defendant’s lack of medical care to the final (Director’s) level 4 of review (Zamora Decl. ¶¶ 3-5, Exh. A; Lozano Decl. ¶¶ 3-5, 7, Exh. A). Plaintiff argues that 5 only federal habeas petitions must be exhausted and that there is no exhaustion requirement for 6 cases brought under Section 1983. That is incorrect, as discussed above. See 42 U.S.C. 7 1997e(a). Plaintiff also argues that he filed an appeal to the Director’s level on August 12, 8 2013. Assuming that is true, it does not satisfy the exhaustion requirement because an action 9 must be dismissed unless the prisoner exhausted his available administrative remedies before he or she filed suit, even if the prisoner fully exhausts while the suit is pending. McKinney v. 11 For the Northern District of California United States District Court 10 Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). In his sur-reply, plaintiff also argues that 12 exhaustion should be excused because his administrative appeal “might not be heard” for a year 13 (dkt. 22). Less than two months had passed when plaintiff prepared his sur-reply, and he 14 presents no evidence that defendants’ decision will take as long as a year. Exhaustion will not 15 be excused based simply upon a speculative possibility of delay. Moreover, a dismissal for 16 lack of exhaustion is without prejudice; if indeed plaintiff has properly presented his claims 17 through the Director’s level of review, as he claims, he may bring his claims in a new case. 18 CONCLUSION 19 For the foregoing reason, defendants’ motion to dismiss (docket number 15) is 20 GRANTED. The case is dismissed without prejudice to plaintiff filing his claims in a new case 21 after he has properly exhausted his available administrative remedies. 22 The clerk shall enter judgment for defendants and close the file. 23 IT IS SO ORDERED. 24 Dated: December 25 2 , 2013. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 26 27 28 3

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