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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 13-0128 WHA (PR)

Plaintiff,
For the Northern District of California

United States District Court

GREGORY DEAN,
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ORDER GRANTING MOTION TO
DISMISS

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v.
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DR. MACK,
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(Docket No. 15)
Defendant.

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INTRODUCTION

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Plaintiff, a California prisoner at Salinas Valley State Prison, filed this pro se civil rights

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action under 42 U.S.C. 1983 complaining that defendant Dr. Mack did not provide adequate

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medical care for plaintiff’s kidney stone in 2012. Defendant Dr. Richard Mack filed a motion

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to dismiss the case on the grounds that plaintiff has not exhausted his administrative remedies.

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Plaintiff has filed an opposition and defendants have filed a reply brief. Plaintiff then filed a

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sur-reply (dkt. 22). For the reasons discussed below, the motion to dismiss is GRANTED.

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ANALYSIS
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STANDARD OF REVIEW
Nonexhaustion under § 1997e(a) is an affirmative defense. Jones v. Bock, 549 U.S. 199,

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217-18 (2007). Defendants have the burden of raising and proving the absence of exhaustion,

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and inmates are not required to specifically plead or demonstrate exhaustion in their complaints.

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Id. at 215-17.

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A nonexhaustion issue should be raised in an unenumerated Rule 12(b) motion rather

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than in a motion for summary judgment. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.

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2003). In deciding a motion to dismiss for failure to exhaust nonjudicial remedies, the Court

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may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. If the Court

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concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is

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dismissal without prejudice. Id. at 1120.

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II.

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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

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For the Northern District of California

United States District Court

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to prison conditions under [42 U.S.C. 1983], or any other Federal law, by a prisoner confined

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in any jail, prison, or other correctional facility until such administrative remedies as are

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available are exhausted." 42 U.S.C. 1997e(a). Compliance with the exhaustion requirement is

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mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 739-

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40 & n.5 (2001). The administrative remedies need not meet federal standards, nor need they

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be “plain, speedy and effective.” Porter, 534 U.S. at 524.

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California provides its inmates and parolees the right to appeal administratively "any

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departmental decision, action, condition or policy perceived by those individuals as adversely

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affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available

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administrative remedies within this system, a prisoner must proceed through several levels of

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appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3)

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second level appeal to the institution head or designee, and (4) third level appeal to the Director

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of the California Department of Corrections. Id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235,

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1237 (S.D. Cal. 1997). This satisfies the administrative remedies exhaustion requirement under

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§ 1997e(a). Id. at 1237-38.

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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
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submitted evidence, undisputed by plaintiff, that prison officials log and track all administrative

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appeals received from prisoners, and that prior to filing the instant action plaintiff did not file

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any administrative appeals about defendant’s lack of medical care to the final (Director’s) level

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of review (Zamora Decl. ¶¶ 3-5, Exh. A; Lozano Decl. ¶¶ 3-5, 7, Exh. A). Plaintiff argues that

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only federal habeas petitions must be exhausted and that there is no exhaustion requirement for

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cases brought under Section 1983. That is incorrect, as discussed above. See 42 U.S.C.

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1997e(a). Plaintiff also argues that he filed an appeal to the Director’s level on August 12,

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2013. Assuming that is true, it does not satisfy the exhaustion requirement because an action

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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.

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For the Northern District of California

United States District Court

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Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). In his sur-reply, plaintiff also argues that

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exhaustion should be excused because his administrative appeal “might not be heard” for a year

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(dkt. 22). Less than two months had passed when plaintiff prepared his sur-reply, and he

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presents no evidence that defendants’ decision will take as long as a year. Exhaustion will not

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be excused based simply upon a speculative possibility of delay. Moreover, a dismissal for

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lack of exhaustion is without prejudice; if indeed plaintiff has properly presented his claims

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through the Director’s level of review, as he claims, he may bring his claims in a new case.

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CONCLUSION

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For the foregoing reason, defendants’ motion to dismiss (docket number 15) is

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GRANTED. The case is dismissed without prejudice to plaintiff filing his claims in a new case

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after he has properly exhausted his available administrative remedies.

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The clerk shall enter judgment for defendants and close the file.

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IT IS SO ORDERED.

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Dated: December
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2 , 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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