(PC) Foley v. Gerstel et al, No. 1:2008cv00769 - Document 19 (E.D. Cal. 2009)
Court Description: ORDER GRANTING Defendants' 14 Motion to Dismiss signed by District Judge David C. Bury on 8/25/2009. This 8 Action is DISMISSED Without Prejudice. CASE CLOSED. (Sant Agata, S)
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(PC) Foley v. Gerstel et al Doc. 19 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 Tracy Foley, 8 9 10 11 ) ) CV-08-769-DCB P Plaintiff, ) ) vs. ) ) ORDER K.M. Gerstel, et al., ) ) Defendants. ) _____________________________________ ) 12 13 Plaintiff, a state prisoner proceeding pro se, filed a civil rights 14 complaint pursuant to 42 U.S.C. § 1983. Finding the complaint, liberally 15 construed, stated cognizable claims, the Court ordered service upon 16 Defendants. On July 29, 2009, Defendants filed a motion to dismiss for 17 Plaintiff's failure to exhaust administrative remedies under the Prison 18 Litigation Reform Act, 42 U.S.C. § 1997e(a).1 Plaintiff filed an 19 opposition to the motion and Defendant filed a reply. For the reasons 20 discussed below, the Court will grant the motion and dismiss the action 21 without prejudice. 22 23 BACKGROUND Plaintiff was incarcerated at the California Substance Abuse and 24 Treatment Facility (SATF). Plaintiff alleges that he was seen by 25 Defendant Ancheta (a dentist at SATF) on June 26, 2006, in response to 26 27 28 1 This motion was timely filed, consequently the Plaintiff’s request for default (Doc. No. 15) is denied. 1 Dockets.Justia.com 1 the administrative grievance that he filed. Plaintiff allegedly begged 2 Defendants to pull his tooth and Defendants allegedly told Plaintiff that 3 he would be seen by a dentist within two weeks if he dropped his 4 administrative grievance. Because of this assurance, he claims he 5 withdrew his administrative appeal. Plaintiff allegedly waited in pain 6 for over a year to be seen by a dentist. Plaintiff claims that this 7 delay resulted from Defendants’ failure to schedule him for a dental 8 procedure. Plaintiff filed two appeals relating to his dental treatment 9 at SATF. Plaintiff withdrew the first grievance on June 26, 2006, when 10 he was put on the waiting list for treatment. He filed another appeal on 11 June 24, 2007, stating that, on May 9, 2007, Defendant Ancheta, after 12 examining him and performing x-rays, determined that he needed extensive 13 treatment and made Plaintiff’s treatment “high-priority.” He stated that 14 Defendant has noted that he had been on the waiting list for over a year. 15 16 Plaintiff filed no other grievances relating to his dental care. 17 18 DISCUSSION The Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 19 Stat. 1321 (1996) (PLRA), amended 42 U.S.C. § 1997e to provide that “[n]o 20 action shall be brought with respect to prison conditions under [42 21 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any 22 jail, prison, or other correctional facility until such administrative 23 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 24 Exhaustion is mandatory and no longer left to the discretion of the 25 district court. Woodford v. Ngo, 548 U.S. 81 (2006) (citing Booth v. 26 Churner, 532 U.S. 731, 739 (2001)). “Prisoners must now exhaust all 27 ‘available’ remedies, not just those that meet federal standards.” Id. 28 2 1 Even when the relief sought cannot be granted by the administrative 2 process, i.e., monetary damages, a prisoner must still exhaust 3 administrative remedies. Id. at 2382-83 (citing Booth, 532 U.S. at 734). 4 “The text of 42 U.S.C. § 1997e(a) strongly suggests that the PLRA 5 uses the term ‘exhausted’ to mean what the term means in administrative 6 law, where exhaustion means proper exhaustion.” Id. at 2387. Therefore, 7 the PLRA's exhaustion requirement requires “proper exhaustion” of 8 available administrative remedies. Id. “Proper exhaustion demands 9 compliance with an agency's deadlines and other critical procedural rules 10 because no adjudicative system can function effectively without imposing 11 some orderly structure on the course of its proceedings.” Id. at 2386 12 (footnote omitted). In other words, the PLRA's exhaustion requirement 13 cannot be satisfied “by filing an untimely or otherwise procedurally 14 defective administrative grievance or appeal.” Id. at 2382. Furthermore, 15 administrative remedies may not be exhausted where the grievance, 16 liberally construed, does not have the same subject and same request for 17 relief. See generally O'Guinn v. Lovelock Correctional Center, 502 F.3d 18 1056, 1062-63 (9th Cir.2007). 19 The State of California provides its inmates and parolees the right 20 to appeal administratively “any departmental decision, action, condition, 21 or policy which they can demonstrate as having an adverse effect upon 22 their welfare.” Cal.Code Regs. tit. 15, § 3084.1(a). It also provides 23 its inmates the right to file administrative appeals alleging misconduct 24 by correctional officers. See id. § 3084.1(e). In order to exhaust 25 available administrative remedies within this system, a prisoner must 26 proceed through several levels of appeal: (1) informal resolution, (2) 27 formal written appeal on a CDC 602 inmate appeal form, (3) second level 28 3 1 appeal to the institution head or designee, and (4) third level appeal 2 to the Director of the California Department of Corrections and 3 Rehabilitation. Id. § 3084.5; Barry v. Ratelle, 985 F.Supp. 1235, 1237 4 (S.D.Cal.1997). This satisfies the administrative remedies exhaustion 5 requirement under § 1997e(a). Id. at 1237-38. A prisoner need not 6 proceed further and also exhaust state judicial remedies. Jenkins v. 7 Morton, 148 F.3d 257, 259-60 (3d Cir.1998). 8 Although Federal Rule of Civil Procedure 12 does not explicitly 9 address exhaustion, the Ninth Circuit has held that the failure to 10 exhaust nonjudicial remedies "should be treated as a matter in abatement 11 subject to an unenumerated Rule 12(b) motion." Wyatt v. Terhune,315 F.3d 12 1108, 1119 (9th Cir. 2003). Authority for the "unenumerated" 12(b) motion 13 derives from this Court's inherent power to regulate actions, including 14 authorizing motions not explicitly recognized by the rules. Ritza v. 15 Int'l Longshoremen's and Warehousemen's Union, 837 F.2d 365, 369 (9th 16 Cir. 1988). "In deciding a motion to dismiss for failure to exhaust 17 nonjudicial remedies, the court may look beyond the pleadings and decide 18 disputed issues of fact." Wyatt, 315 F.3d at 1119-1120. Because no 19 presumption of truthfulness attaches to plaintiff's allegations in such 20 matters, the court may resolve any disputed material facts before 21 proceeding further. Ritza, 837 F.2d at 368-69. If the court concludes 22 that the prisoner has not exhausted nonjudicial remedies, the proper 23 remedy is dismissal of the claim without prejudice. Wyatt, 315 F.3d at 24 1120. 25 The State of California provides its prisoners and parolees the 26 right to administratively appeal “any departmental decision, action, 27 condition or policy perceived by those individuals as adversely affecting 28 4 1 their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust 2 available administrative remedies, a prisoner must proceed through an 3 initial informal level, and three formal levels of review, culminating 4 in a Director’s Level Decision. Id. at § 3084.5; Barry v. Ratelle, 985 5 F. Supp. 1235, 1237 (S.D. Cal.1997). A final decision at the Director’s 6 level satisfies the exhaustion requirement under § 1997e(a). Id. at 12377 38. 8 Under Wyatt and Ritza, this Court may properly look to the 9 declarations of R. Hall, SATF Appeals Coordinator, and N. Grannis, Chief 10 of the Inmate Appeals Branch. These declarations show that Plaintiff 11 failed to file a grievance that would put Defendants on notice that 12 Defendant Ancheta obstructed Plaintiff’s ability to be seen by a dentist. 13 Plaintiff is required to file an appeal even if he believes doing so 14 would be futile, in that the appeal would not be accepted. Jernigan v. 15 Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Plaintiff’s appeal, 16 additionally, would not have been be duplicative as it would have been 17 a staff complaint, not a request for services, relating to the fact that 18 Defendant Ancheta failed to schedule him for an appointment after she 19 assured him that she would. 20 Plaintiff’s second appeal relating to his dental treatment was 21 exhausted at the Director’s level on March 25, 2008. In this appeal 22 Plaintiff states that Defendant Ancheta examined him on May 9, 2007, that 23 she believed he needed “priority treatment” and that she noted he had 24 been on the waiting list for over a year. Plaintiff additionally states, 25 when appealing to the formal level, that if he had not run into Defendant 26 Ancheta he would still be on the waiting list. This is not enough to put 27 Defendants on notice that Defendant Ancheta obstructed Plaintiff’s access 28 5 1 to dental treatment by failing to schedule him for a dental procedure. 2 A prisoner must exhaust his available administrative remedies 3 before he or she filed suit, even if the prisoner fully exhausts while 4 the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 5 2002). Plaintiff did not fully exhaust this claim at the time he filed 6 the complaint. 7 8 CONCLUSION Having considered all the evidence submitted by both parties, the 9 Court finds that Defendants have met their burden to demonstrate that 10 Plaintiff failed to exhaust available administrative remedies. The 11 proper remedy is dismissal without prejudice. Wyatt, 315 F.3d at 1119-20. 12 Based on the Court's finding that Plaintiff did not exhaust the available 13 administrative remedies prior to filing suit, the Court does not reach 14 Defendants' other arguments. 15 Accordingly, 16 IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. No. 14) is 17 GRANTED. This action is DISMISSED without prejudice and CLOSED. 18 DATED this 25th day of August, 2009. 19 20 21 22 23 24 25 26 27 28 6
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