Mehrer v. Department of Public Safety (DPS) et al

Filing 11

ORDER DENYING MOTION FOR REMAND AND DISMISSING ACTION WITHOUT PREJUDICE re 10 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/19/12. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Christopher Mehrer served by first class mail at the address of record on October 19, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHRISTIAN MEHRER, #A1010119,
Plaintiff,
vs.
DEP’T OF PUBLIC SAFETY,
SHARI KIMOTO, JOHN IOANE,
Defendants.
____________________________

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NO. 1:12-cv-00540 SOM/KSC
ORDER DENYING MOTION FOR REMAND
AND DISMISSING ACTION WITHOUT
PREJUDICE

ORDER DENYING MOTION FOR REMAND AND
DISMISSING ACTION WITHOUT PREJUDICE
On October 5, 2012, Defendants initiated this federal
prisoner civil rights action by filing a Notice of Removal in
this court pursuant to 28 U.S.C. § 1441(c).

ECF #10.

Pro se

Plaintiff Christian Mehrer is a Hawaii prisoner incarcerated at
the Saguaro Correctional Center (SCC), located in Eloy, Arizona.
Before the court is Plaintiff’s Motion in Opposition to Removal
and to Remand Back To State Court (“Motion for Remand”).
#10.

ECF

For the following reasons, Plaintiff’s Motion to Remand is

DENIED, and this action is DISMISSED without prejudice pursuant
to 42 U.S.C. § 1997(e).
I.

BACKGROUND

Plaintiff originally filed this pleading in the state
circuit court on July 18, 2012, as a post-conviction petition.
See Defs.’ Exh. A, “HRPP Rule 40(c)(2) Nonconforming Petition And
(3) Separate Cause of Action, ECF #1-2.

Plaintiff alleges that

SCC prison officials denied him medical care for a hernia at the
direction of Defendant Shari Kimoto and John Ioane, who are
employed by the Hawaii Department of Public Safety in Hawaii.
Plaintiff claims that he is in great pain and that SCC prison
medical personnel refuse to provide him with surgery to alleviate
his pain.

Plaintiff seeks monetary and injunctive relief.
Rule 40(c)(3) of the Hawaii Rules of Penal Procedure

states: “If a post-conviction petition alleges neither illegality
of judgment nor illegality of postconviction custody or restraint
but instead alleges a cause of action based on a civil rights
statute or other separate cause of action, the court shall treat
the pleading as a civil complaint not governed by this rule.”
The state circuit court found that Plaintiff’s putative postconviction petition failed to assert a basis for habeas relief
under HRPP Rule 40.
40(c)(3).

ECF #1-2, PageID #11-12; see also, HRPP

The state court recharacterized the post-conviction

petition as a civil complaint and ordered that it be processed
accordingly.

Defendant thereafter timely removed the action from

the state court.

See ECF #1 & #8.

Plaintiff seeks remand to the state court, asserting
that he “did not exhaust any administrative procedure i.e.
grievances, therefore, under 42 U.S.C. § 1997e(a) [which]
requires exhaustion, unless the defendants concedes [sic]

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exhaustion requirements [Plaintiff] asks this court to remand
this case back to State Court.”
III.
A.

Mot., ECF #10 PageID #86.

DISCUSSION

Plaintiff Asserts a Civil Rights Cause of Action
Plaintiff is challenging the conditions of his

confinement in Arizona, as imposed by SCC prison officials, not
the validity of his conviction or sentence.

Had Plaintiff

originally filed this action in the federal court, it would have
been construed as a civil rights complaint and reviewed under 42
U.S.C. § 1983, not as a petition for habeas corpus under 28
U.S.C. § 2254.
Federal law opens two main avenues of relief on
complaints related to imprisonment: a petition for
habeas corpus, 28 U.S.C. § 2254, and a complaint under
. . . 42 U.S.C. § 1983. Challenges to the validity of
any confinement . . . are the province of habeas
corpus[;] . . . requests for relief turning on
circumstances of confinement may be presented in a
§ 1983 claim.
Muhammad v. Close, 540 U.S. 749, 749 (2004).

Thus, claims that

challenge the fact or duration of a prisoner’s confinement should
be addressed by filing a habeas corpus petition, while claims
that challenge the conditions of confinement should be addressed
by filing a civil rights action.
U.S. 539, 554

See Wolff v. McDonnell, 418

(1974); Preiser v. Rodriguez, 411 U.S. 475,

499-500 (1973); Ramirez v. Galaza, 334 F.3d 850, 858-859 (9th
Cir. 2003) (explaining that “habeas jurisdiction is absent, and a
§ 1983 action proper, where a successful challenge to a prison
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condition would not necessarily shorten the prisoner’s
sentence”).
While Plaintiff’s claims may or may not have merit in a
civil rights proceeding, the relief available through a petition
for habeas corpus (in state or federal court) does not extend to
his claim that SCC prison officials denied him medical care in
Arizona.

See Heck v. Humphrey, 512 U.S. 477, 481 (1994)

(“constitutional claims that merely challenge the conditions of a
prisoner’s confinement, whether the inmate seeks monetary or
injunctive relief, fall outside” the core of habeas corpus).
Plaintiff argues that the reason he brought this action
in state court is that he has not complied with 42 U.S.C.
§ 1997e’s rule that a prisoner must exhaust prison administrative
grievances on his claims before filing suit in federal court.
Plaintiff claims that, because he did not exhaust his claims
through the SCC prison grievance procedure, he is precluded from
proceeding in the federal court, and therefore, his “case does
not come within the meaning of a [§] 1983” action.
at PageID #86.

Mot., ECF #10

Plaintiff invites Defendants or the court to

“waive” his exhaustion requirements, asserting that he will then
happily proceed in this court.
In raising the exhaustion issue, Plaintiff is getting
ahead of himself.

The court begins by examining the nature of a

case before turning to matters such as exhaustion.

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If

Plaintiff’s allegations do not present a legitimate challenge to
his conviction or sentence, then the action cannot be brought
under HRPP 40 or 28 U.S.C. § 2254.
alter the nature of an action.

A failure to exhaust does not

In either state or federal court,

Plaintiff’s case must be reviewed as a civil rights action.
Plaintiff’s purposeful filing of his pleading in state court,
particularly in light of his admitted awareness of the exhaustion
requirement, appears to be an attempt to circumvent the
restrictions federal law imposes on prisoner filings.
Success on Plaintiff’s claims will not result in his
immediate or speedier release from confinement.

At most, success

will result in proper medical care for Plaintiff and a monetary
award; it will not invalidate any conviction or sentence.

As

Plaintiff challenges events relating to the conditions, not the
validity, of his confinement, his allegations are actionable in
federal court under 42 U.S.C. § 1983, not under 28 U.S.C. § 2254.
See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005).
B.

Removal Was Proper
A defendant may remove any civil action brought in

state court over which the federal court would have original
jurisdiction. 28 U.S.C. § 1441(a).

That is, a civil action that

could have originally been brought in federal court may be
removed from state to federal court.
Williams, 482 U.S. 386, 392 (1987).

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Caterpillar Inc. v.
A federal court has original

jurisdiction “of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
§ 1331.

28 U.S.C.

Because Plaintiff alleges federal constitutional

violations in his pleading, subject matter jurisdiction is proper
in federal court.

Further, to the extent Plaintiff asserts state

law claims, which is unclear from his pleading, a federal court
may exercise supplemental jurisdiction over any closely related
state law claims.

See 28 U.S.C. § 1367(c).

Plaintiff’s pleading facially supports subject matter
jurisdiction in federal court because he alleges a violation of
his federal constitutional rights.

See 28 U.S.C. §§ 1441, 1442.

Defendants timely removed this action from state court within
thirty days of receiving notice of the filing of this action.
U.S.C. § 1446(b).

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Because the case was properly removed to

federal court, Plaintiff’s Motion for Remand is DENIED.
C.

Plaintiff Failed to Comply With 42 U.S.C. § 1997e(a)
A prisoner may not bring a lawsuit with respect to

prison conditions under § 1983 unless all available
administrative remedies have been exhausted.

42 U.S.C.

§ 1997e(a); Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir.
2006); Brown v. Valoff, 422 F.3d 926, 934–35 (9th Cir. 2005).
Exhaustion is required for all suits about prison life, Porter v.
Nussle, 534 U.S. 516, 523 (2002), regardless of the type of
relief offered through the administrative process, Booth v.
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Churner, 532 U.S. 731, 741 (2001).

A prisoner must complete the

administrative review process in accordance with the applicable
rules and following the steps set out in the grievance procedure.
Woodford v. Ngo, 548 U.S. 81, 92 (2006).
Exhaustion must precede the filing of a complaint, and
compliance with the statute is not achieved by satisfying the
exhaustion requirement during the course of an action.
v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).

McKinney

“[E]xhaustion is

mandatory under the PLRA and . . . unexhausted claims cannot be
brought in court.”

Porter, 534 U.S. at 524.

Because exhaustion under § 1997e(a) is an affirmative
defense, a complaint may be dismissed for failure to exhaust only
if failure to exhaust is obvious from the face of the complaint
and/or any attached exhibits.
1108, 1119–20 (9th Cir. 2003).

See Wyatt v. Terhune, 315 F.3d
The court may dismiss a complaint

for failure to exhaust when the prisoner “conce[des] to
nonexhaustion” and “no exception to exhaustion applies.”

Id. at

1120; see also Jones v. Bock, 549 U.S. 199, 215 (2007), citing
with approval Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001)
(“[A] complaint may be subject to dismissal under Rule 12(b)(6)
when an affirmative defense . . . appears on its face” (internal
quotation marks omitted)); Bowden v. Gregoire, 436 Fed. App’x 795
(9th Cir. 2011) (citing Wyatt and affirming dismissal of prisoner
complaint that conceded exhaustion).
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Plaintiff admits in his Motion for Remand that he has
not completed SCC’s grievance process.

Moreover, exhibits

attached to Plaintiff’s Complaint show that SCC medical personnel
evaluated Plaintiff for hernia surgery at least three times
during May and June 2012 and determined that surgery was not
necessary.

See ECF #1-2 PageID #9.

On July 5, 2012, Defendant

Ioane advised Plaintiff to use the prison grievance procedure to
address his complaints.

Id.

Instead, just seven days later,

Plaintiff signed his Complaint and sent it to the state court.
Plaintiff could not have fully exhausted his claim within seven
days.

The record here is clear that Plaintiff did not exhaust

his claims before filing suit, there are no disputed issues of
fact concerning exhaustion, and no exception to exhaustion is
alleged or apparent in the Complaint or in Plaintiff’s
statements.

Because Plaintiff admits he has failed to exhaust

his administrative remedies prior to bringing this action, it
must be dismissed without prejudice.
III.

CONCLUSION

Plaintiff’s Motion for Remand is DENIED.

This action

is DISMISSED without prejudice based on Plaintiff’s admitted
failure to exhaust available prison administrative remedies.
pending motions are DENIED.

All

The Clerk of Court is DIRECTED to

close the file and enter judgment.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 19, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Mehrer v. Dep’t. of Public Safety, et al., 1:12-cv-00540 SOM-KSC; ORDER DENYING MOTION
FOR REMAND AND DISMISSING ACTION WITHOUT PREJUDICE; G:\docs\prose
attys\Screening\DMP\2012\Mehrer 12cv540 som (remov'l, no remand, states no
exhaustion).wpd

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