Mendoza v. Spearman et al

Filing 4

ORDER DISMISSING CASE. Signed by Judge William Alsup on 5/1/13. (Attachments: # 1 Certificate of Service)(tlS, COURT STAFF) (Filed on 5/1/2013)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
RAUL MENDOZA,

12
13

No. C 13-1432 WHA (PR)

Plaintiff,

11
For the Northern District of California

United States District Court

10

ORDER OF DISMISSAL

vs.
M. SPEARMAN; GERALD ELLIS;
DARREN BRIGHT,

14
Defendants.
/

15
16

INTRODUCTION
17
Plaintiff, a California prisoner proceeding pro se, filed a pro se civil rights complaint
18
under 42 U.S.C. 1983. He has been granted leave to proceed in forma pauperis in a separate
19
order.
20
ANALYSIS
21
Plaintiff claims that he has received inadequate medical care at the California Training
22
Facility in Soledad, California. Specifically, he alleges that he received an operation to remove
23
a tumor in 2011, but it has returned and is causing him pain. He claims that defendants
24
prescribed him pain medication but denied his requests for an M.R.I. In his complaint, he states
25
that he has not pursued his claims all the way through the last level of administrative review
26
available to him.
27
The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide that
28

1

"[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any

2

other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

3

such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).

4

Compliance with the exhaustion requirement is mandatory. Porter v. Nussle, 534 U.S. 516, 524

5

(2002); Booth v. Churner, 532 U.S. 731, 739-40 & n.5 (2001). The administrative remedies

6

need not meet federal standards, nor need they be “plain, speedy and effective.” Porter, 534

7

U.S. at 524.

concession to nonexhaustion is a valid ground for dismissal. Wyatt v. Terhune, 315 F.3d 1108,

10

1119-20 (9th Cir. 2003). Accordingly, a claim may be dismissed without prejudice if it is clear

11
For the Northern District of California

Although nonexhaustion under § 1997e(a) is an affirmative defense, a prisoner’s

9

United States District Court

8

from the record that the prisoner concedes that he did not exhaust administrative remedies. Id.

12

The State of California provides its inmates and parolees the right to appeal

13

administratively "any departmental decision, action, condition or policy perceived by those

14

individuals as adversely affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). In order

15

to exhaust available administrative remedies within this system, a prisoner must proceed

16

through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC

17

602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4)

18

third level appeal to the Director of the California Department of Corrections and Rehabilitation

19

(“CDCR”). Id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This

20

satisfies the administrative remedies exhaustion requirement under § 1997e(a). Id. at 1237-38.

21

A prisoner need not proceed further and also exhaust state judicial remedies. Jenkins v.

22

Morton, 148 F.3d 257, 259-60 (3d Cir. 1998). Nor is a prisoner required to comply with the

23

California Tort Claims Act and present his claims to the State Board of Control in order to

24

fulfill the exhaustion requirement. Rumbles v. Hill, 182 F.3d 1064, 1070 (9th Cir. 1999),

25

overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001).

26

In his complaint, plaintiff states that he filed administrative appeals at the informal and

27

first formal level of appeal, which was denied on March 5, 2013. He states that he did not

28

pursue administrative appeals beyond that level, even though they were available to him,
2

1

because he “was notified by the Court to file or be dismissed” (Compl. 2). Plaintiff refers to a

2

notice he received from the clerk in response to a letter he wrote to Chief Judge Henderson.

3

The notice informed him that a case had been opened on the basis of that letter, and that the

4

case would be dismissed if he did not file a complaint within twenty-eight days. See Mendoza

5

v. Spearman, No. C 13-0862 WHA (PR) (dkt. 2). The notice did not state that his obligation to

6

administratively exhaust his claims before filing them in federal court was excused, it merely

7

stated that a case opened on the basis of his letter would be dismissed if no pleading was filed.

8

Plaintiff appears to have understood this as he responded to the notice with a motion requesting

9

dismissal of the case without prejudice to allow him to completely exhaust the available
administrative appeals before pursuing his claims in federal court (id. dkt. 4). Plaintiff’s motion

11
For the Northern District of California

United States District Court

10

was granted, the case was administratively closed as having been opened in error, and the filing

12

fee was waived (id. dkt. 5). Plaintiff may pursue his claims in federal court once he has

13

completed the available administrative appeals, i.e. once a decision has been rendered on the

14

final, Director’s level of review of his administrative appeals.

15
16

Because the lack of exhaustion is clear from the face of the complaint, the case must be
dismissed without prejudice to re-filing after all administrative appeals have been exhausted.

17
18
19

CONCLUSION
This case is DISMISSED without prejudice to plaintiff filing his claims in a new case
after exhausting all available administrative remedies.

20

The clerk shall enter judgment and close the file.

21

IT IS SO ORDERED.

22
Dated: April
23

, 2013.

5/1/2013

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

24
25
26
27
28

G:\PRO-SE\WHA\CR.13\MENDOZA1432.DSM-EXH.wpd

3