Smith v. Chau et al

Filing 14

ORDER (1) Dismissing Civil Action Without Prejudice For Failure to Exhaust Administrative Remedies Prior to Suit Pursuant to 42 U.S.C. §1997e(a); and (2) Denying Plaintiff's Motions to Proceed In Forma Pauperis and For Appointment of Counsel as Moot (Docs. 6 , 7 , 13 ). The Clerk of Court shall enter a final dismissal of this action without prejudice and close the case. Signed by Judge Gonzalo P. Curiel on 10/17/2013. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CAREY K. SMITH,
CDCR #P-13926,

Civil No.

Plaintiff,

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vs.

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AND

Dr. JOHN CHAU; Dr. G. CASLAN;
and D. MORTON, LVN,

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Defendants.

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ORDER:
(1) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES
PRIOR TO SUIT PURSUANT
TO 42 U.S.C. § 1997e(a)

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(2) DENYING PLAINTIFF’S
MOTIONS TO PROCEED IN
FORMA PAUPERIS AND FOR
APPOINTMENT OF
COUNSEL AS MOOT
[ECF Doc. Nos. 6, 7, 13]

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Plaintiff, a transgender inmate currently incarcerated at Richard J. Donovan Correctional

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Facility (“RJD”) in San Diego, California, initiated this civil action by filing a letter addressed

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to the Honorable Thelton E. Henderson in the Northern District of California on April 1, 2013

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(ECF Doc. No. 1). Because Plaintiff’s letter alleged RJD medical personnel were denying him

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medication based on homophobia, and indicated a desire to pursue legal action, Plaintiff was

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granted twenty-eight days leave in which to submit a complaint pursuant to 42 U.S.C. § 1983,
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as well as a Motion to Proceed In Forma Pauperis (“IFP”). See ECF Doc. Nos. 1-3. On April

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29, 2013, Plaintiff filed his Complaint (ECF Doc. No. 5), as well as a Motion to Proceed IFP

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(ECF Doc. No. 7), and a Motion for Appointment of Counsel (ECF Doc. No. 6). On June 6,

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2013, however, the case was transferred for lack of proper venue from the Northern to the

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Southern District of California pursuant to 28 U.S.C. §§ 84(d), 1391(b) and 1406(a). See Order

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of Transfer (ECF Doc. No. 9) at 1.

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After transfer, this Court denied Plaintiff’s Motion to Proceed IFP because he failed to

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comply with 28 U.S.C. § 1915(b) (ECF Doc. No. 12). However, Plaintiff was granted forty-five

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days leave in which to either pay the full civil filing fee required by 28 U.S.C. § 1914(a), or

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submit a certified copy of his prison trust account statement in support of his Motion for IFP.

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(Id. at 3.) Plaintiff has since filed the trust account statements required by 28 U.S.C. § 1915(b)

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(ECF Doc. No. 13); therefore, the Court must now decide whether Plaintiff is entitled to proceed

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IFP, or to the appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1), and whether his

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Complaint survives the initial screening required by 28 U.S.C. § 1915A(b).

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I.

SCREENING AND DISCUSSION

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Pursuant to 28 U.S.C. § 1915A, enacted as part of the Prison Litigation Reform Act

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(“PLRA”), “the court shall review, ... as soon as practicable after docketing, a complaint in a

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civil action in which a prisoner seeks redress from a governmental entity or officer or employee

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of a governmental entity.” 28 U.S.C. § 1915A(a); Hamilton v. Brown, 630 F.3d 889, 892 n.3

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(9th Cir. 2011). “On review, the court shall identify cognizable claims or dismiss the complaint,

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or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a

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claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is

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immune from such relief.” 28 U.S.C. § 1915A(b). “Among other reforms, the PLRA mandates

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early judicial screening ... and requires prisoners to exhaust prison grievance procedures before

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filing suit.” Jones v. Bock, 549 U.S. 199, 202 (2007).

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Because Plaintiff is a prisoner, as defined by 28 U.S.C. § 1915A(c), the Court has

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reviewed his Complaint pursuant to § 1915A(a), as well as all exhibits attached thereto, and

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finds it clear Plaintiff’s case must be dismissed because he has conceded his failure to exhaust

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all available administrative remedies prior to commencing this action. See Wyatt, 315 F.3d at

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1120 (noting that “[a] prisoner’s concession to non-exhaustion is a valid ground for dismissal.”)

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The PLRA amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with

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respect to prison conditions under section 1983 of this title, or any other Federal law, by a

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prisoner confined in any jail, prison, or other correctional facility until such administrative

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remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The requirement is mandatory

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and unequivocal. Booth v. Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 F.3d

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1198, 1200 (9th Cir. 2002) (“Congress could have written a statute making exhaustion a

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precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to

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suit.” ).

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A prisoner who seeks to challenge the conditions of his confinement brings an action for

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purposes of 42 U.S.C. § 1997e “when the complaint is tendered to the district clerk.” Vaden v.

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Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Therefore, a prisoner must exhaust available

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administrative remedies before filing any papers in federal court and is not entitled to a stay of

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judicial proceedings in order to exhaust.1 Id. at 1051; McKinney, 311 F.3d 1198 (rejection

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prisoner’s claim that the court should have entered a stay which would have provided an

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opportunity for exhaustion, and concluding that “[e]xhaustion subsequent to the filing of suit

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will not suffice.”). See also Rhodes v. Robinson, 621 F.3d 1002, 1006-07 (9th Cir. 2010)

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(clarifying that the rule of Vaden and McKinney does not apply to new claims raised in a

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supplemental pleading, permitted by the Court pursuant to FED.R.CIV.P. 15(d), which permits

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the party to allege new claims arising after the date the initial pleadings were filed).

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

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administratively “any policy, decision, action, condition, or omission by the department or its

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staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or

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Prior to amendment by the PLRA, 42 U.S.C. § 1997e authorized district courts to stay a state
prisoner’s § 1983 action “for a period of not to exceed 180 days” while he exhausted available “plain,
speedy, and effective administrative remedies.” § 1997e(a)(1). See Porter v. Nussle, 534 U.S. 516,
522-23 (2002). “Exhaustion . . . was in large part discretionary; it could be ordered only if the State’s
prison grievance system met specified federal standards, and even then, only if, in the particular case,
the court believed the requirement “appropriate and in the interests of justice.” Id. at 523 (citing 42
U.S.C. §§ 1997e(a) and (b)).
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her health, safety, or welfare.” CAL. CODE REGS. tit. 15, § 3084.1(a). In order to exhaust

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available administrative remedies within this system prior to January 28, 2011, a prisoner had

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to proceed through four levels of appeal: (1) informal resolution, which required a prisoner to

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submit a CDC 602 inmate appeal form (captioned “Inmate/Parolee Appeal Form”); (2) first level

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formal written appeal; (3) second level written appeal to the institution head or designee; and (4)

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

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Rehabilitation (“CDCR”). See Woodford v. Ngo, 548 U.S. 81, 85–86 (2006); see also CAL.

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CODE REGS. tit. 15, §§ 3084.1–3084.9.2 A final decision from the Director’s level of review

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satisfies the exhaustion requirement under 42 U.S.C. § 1997e(a). See Lira v. Herrera, 427 F.3d

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1164, 1166–67 (9th Cir. 2005); see also CAL. CODE REGS. tit. 15, § 3084.7(d)(3) (as amended

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Dec. 13, 2010).

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In his Complaint, Plaintiff claims to have filed a Patient/Inmate Health Care Appeal Form

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CDCR 602, which was assigned two separate tracking/log numbers: RJD SC 13000859 and

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RJD HC 12047481, but he admits they were still “pending review” at the time he signed his

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Complaint on April 10, 2013. See Compl. (ECF Doc. No. 5) at 1-2, 4. Plaintiff further attaches

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a copy of his CDCR 602 appeal, dated April 1, 2013, as an exhibit to his pleading, (id. at 7-10),

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as well as two letters from the CDCR’s Health Care Services Department, both dated April 4,

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2013, notifying him that his grievances had been classified under two Tracking/Log Numbers:

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RJD SC 130000859 to address his allegations of staff misconduct, (id. at 5) and RJD HC

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12047481, which was assigned to the Health Care Appeals Office for a response. (Id. at 6).

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These two letters further indicate that “second level” responses were not due until April 26, 2013

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for HC 12047481, and May 1, 2013 for SC 13000859. (Id. at 5, 6.) However, as noted above,

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the CDCR’s administrative grievance regulations provide that “all appeals are subject to a third

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level of review, as described in section 3084.7, before administrative remedies are deemed

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exhausted.” See CAL. CODE REGS., tit. 15, § 3084.1(b) (as amended Dec. 13, 2010).

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Effective January 28, 2011, the informal resolution level was eliminated. See CAL. CODE
REGS. tit. 15, § 3084.7 (as amended Dec. 13, 2010).
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Thus, based on Plaintiff’s concession that his administrative grievances remained

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“pending” within the CDCR at the time he filed his Complaint, as further corroborated by his

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own exhibits, the Court finds it is apparent Plaintiff did not exhaust all administrative remedies

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as were available to him pursuant to 42 U.S.C. § 1997e(a) prior to initiating this action. See

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Vaden, 499 F.3d at 1051; Wyatt, 315 F.3d at 1120. The “exhaustion requirement does not allow

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a prisoner to file a complaint addressing non-exhausted claims, even if the prisoner exhausts his

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administrative remedies while his case is pending.” Rhodes, 621 F.3d at 1004 (citing McKinney,

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311 F.3d at 1199).

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Accordingly, the Court finds this case must be dismissed without prejudice to Plaintiff

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re-filing a new and separate civil action after he has fully complied with 42 U.S.C.§ 1997e(a)’s

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exhaustion requirement. See Wyatt, 315 F.3d at 1120 (a dismissal for failure to exhaust

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administrative remedies is without prejudice).

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II.

CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s action is DISMISSED without prejudice based on his conceded failure

to exhaust administrative remedies prior to suit pursuant to 42 U.S.C. § 1997e(a);
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Plaintiff’s Motions to Proceed IFP and for Appointment of Counsel (ECF Doc.

Nos. 6, 7, 13) are DENIED as moot; and
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The Clerk of Court shall enter a final dismissal of this action without prejudice and

close the case.

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DATED: October 17, 2013
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HON. GONZALO P. CURIEL
United States District Judge

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