Fulford v. Griffen et al

Filing 10

ORDER OF DISMISSAL. Signed by Judge Claudia Wilken on 9/24/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 9/24/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Case No.: C 13-2535 CW (PR)

FRED FULFORD,

ORDER OF DISMISSAL

Plaintiff,
v.
DOCTOR GRIFFEN, CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
REHABILITATION,

United States District Court
For the Northern District of California

Defendants.
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INTRODUCTION
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Plaintiff, a California prisoner incarcerated at San Quentin
State Prison (SQSP) and proceeding pro se, filed a civil rights

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complaint pursuant to 42 U.S.C. § 1983.

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below, this case is DISMISSED without prejudice for failure to

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exhaust administrative remedies and failure to state a federal

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claim for relief.

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forma pauperis is granted in a separate order.

Plaintiff's motion for leave to proceed in

DISCUSSION

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For the reasons discussed

I. Failure to Exhaust
The Prison Litigation Reform Act of 1995 (PLRA) provides: “No

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action shall be brought with respect to prison conditions under

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[42 U.S.C. § 1983], or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until

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such administrative remedies as are available are exhausted.”

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U.S.C. § 1997e(a).

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discretion of the district court.

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Exhaustion is mandatory and not left to the
Woodford v. Ngo, 548 U.S. 81,

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84 (2006).

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concerning prison life, whether such actions involve general

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conditions or particular episodes, whether they allege excessive

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force or some other wrong, and even if they seek relief not

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available in grievance proceedings, such as money damages.

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v. Nussle, 534 U.S. 516, 524 (2002).

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be exhausted; those remedies “need not meet federal standards, nor

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must they be ‘plain, speedy, and effective.’”

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omitted).

Exhaustion is a prerequisite to all prisoner lawsuits

Porter

All available remedies must

Id. (citation

Prisoners cannot avoid the administrative exhaustion

United States District Court
For the Northern District of California

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requirement by requesting relief not available in the appeals

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system, such as monetary relief, or by simply declaring the

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process futile.

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exhaustion” of all available administrative remedies.

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U.S. at 93.

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defense, a complaint may be dismissed for failure to exhaust only

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if failure to exhaust is obvious from the face of the complaint

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and/or any attached exhibits.

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1119-20 (9th Cir. 2003).

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failure to exhaust where the prisoner “conce[des] to

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nonexhaustion” and “no exception to exhaustion applies.”

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1120.

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The exhaustion requirement requires “proper
Ngo, 548

Because exhaustion under § 1997e(a) is an affirmative

Wyatt v. Terhune, 315 F.3d 1108,

The Court may dismiss a complaint for

Id. at

Plaintiff indicates on the complaint that he has not

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presented the facts in his complaint for review through the

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administrative process.

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indicate the reason for not pursuing an appeal, he writes next to

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the informal appeal, "As there is no remedy that this prison or

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its representative can take to remedy this case."

Compl. at 2.

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In the space for him to

Compl. at 2.

Plaintiff must comply with the PLRA’s requirement of “proper

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exhaustion” under Ngo: “Proper exhaustion demands compliance with

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an agency’s deadlines and other critical procedural rules because

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no adjudicative system can function effectively without imposing

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some orderly structure on the course of its proceedings.”

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U.S. at 90-91 (footnote omitted).

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is nothing the prison can do to remedy the harm he alleges, he

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must still take his claim through the entire SQSP administrative

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appeals process before he may file a complaint in federal court.

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United States District Court
For the Northern District of California

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Because it is clear that Plaintiff has not “properly exhausted”

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his claims, and there is no applicable exception to the exhaustion

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requirement, dismissal without prejudice is appropriate.

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II. Failure to State a Federal Claim

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548

Even if Plaintiff feels there

A federal court must conduct a preliminary screening in any

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case in which a prisoner seeks redress from a governmental entity

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or officer or employee of a governmental entity.

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§ 1915A(a).

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claims and dismiss any claims that are frivolous, malicious, fail

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to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief.

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§ 1915A(b)(1), (2).

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construed.

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699 (9th Cir. 1988).

See 28 U.S.C.

In its review, the court must identify any cognizable

See id.

Pro se pleadings must, however, be liberally

See Balistreri v. Pacifica Police Dep't, 901 F.2d 696,

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To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements: (1) that a right secured by the

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Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting

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under color of state law.

See West v. Atkins, 487 U.S. 42, 48
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(1988).

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defendant only if the plaintiff can show that the defendant

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proximately caused the deprivation of a federally protected right.

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See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Under § 1983, liability may be imposed on an individual

Plaintiff alleges the following.

Approximately eleven months

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ago, he went to the hospital for surgery on his left foot.

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the surgery, Dr. Griffen removed half the bone in a toe that was

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not injured.

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malpractice and seeks money damages from him.

United States District Court
For the Northern District of California

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During

Plaintiff alleges that Dr. Griffen committed

Deliberate indifference to serious medical needs violates the

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Eighth Amendment’s proscription against cruel and unusual

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punishment.

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v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

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grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136

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(9th Cir. 1997) (en banc).

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indifference” involves an examination of two elements: the

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seriousness of the prisoner’s medical need, and the nature of the

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defendant’s response to that need.

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medical need exists if the failure to treat a prisoner’s condition

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could result in further significant injury or the unnecessary and

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wanton infliction of pain.

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reasonable doctor or patient would find important and worthy of

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comment or treatment, the presence of a medical condition that

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significantly affects an individual’s daily activities, or the

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existence of chronic and substantial pain are examples of

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indications that a prisoner has a serious need for medical

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treatment.

Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin

A determination of “deliberate

Id.

Id. at 1059.

A serious

The existence of an injury that a

Id. at 1059-60.

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A prison official is deliberately indifferent if he knows

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that a prisoner faces a substantial risk of serious harm and

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disregards that risk by failing to take reasonable steps to abate

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it.

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official must not only “be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists,”

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but he “must also draw the inference.”

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deliberate indifference to be established, therefore, there must

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be a purposeful act or failure to act on the part of the defendant

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

Id.

The prison

In order for

United States District Court
For the Northern District of California

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and resulting harm.

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indifference may be shown when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown

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in the way in which they provide medical care.

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A claim of medical malpractice or negligence is insufficient to

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make out a violation of the Eighth Amendment.

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Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

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McGuckin, 974 F.2d at 1060.

Deliberate

Id. at 1062.

Id. at 1059;

Plaintiff's allegations fail to state a claim for deliberate

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indifference to serious medical needs.

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include allegations indicating what his condition is that meets

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the requirements of a "serious medical need."

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allegations do not show that Dr. Griffen's conduct amounted to

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deliberate indifference.

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or medical malpractice is insufficient to allege a violation of

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the Eighth Amendment for deliberate indifference.

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Plaintiff himself describes Dr. Griffen's conduct as malpractice

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is an indication that Dr. Griffen's actions do not rise to the

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level of deliberate indifference.

First, Plaintiff does not

Second, Plaintiff's

As stated above, a claim of negligence

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The fact that

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CONCLUSION

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For the foregoing reasons, this action is hereby DISMISSED

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without prejudice to Plaintiff’s re-filing his claim after all

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available administrative remedies have been exhausted.

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Plaintiff's action is also dismissed without prejudice to re-

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filing a medical malpractice claim in state court.

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If Plaintiff exhausts administrative remedies and wishes to

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re-file this claim in a new case in federal court, he must remedy

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the deficiencies noted above in regard to alleging a claim for

United States District Court
For the Northern District of California

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deliberate indifference to serious medical needs.

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The Clerk shall terminate any pending motions and close the
file.
IT IS SO ORDERED.

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Dated: 9/24/2013
________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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