Opinion
No. C 00-252 1 PJH (PR)
March 30, 2001
GRANT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DISMISSAL WITHOUT PREJUDICE
This is a pro se section 1983 civil rights action filed by a prisoner at Pelican Bay State Prison. Defendants have moved for summary judgment on the ground that there are no material facts in dispute and that they are entitled to judgment as a matter of law.
BACKGROUND
Plaintiff alleges that he has been diagnosed with emphysema. He contends that the defendants concealed the diagnosis, refuse to treat the disease, and refuse to transfer him to the medical facility where it could be treated.
DISCUSSION
A. Sandard of Review
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id
The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986); Nissan Fire Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When the moving party has met this burden of production, the nonmoving party must go beyond the pleadings and, by its own affidavits or discoveiy, set forth specific facts showing that there is a genuine issue for trial. If the nonmoving party fails to produce enough evidence to show a genuine issue of material fact, the moving party wins. Id.
B. Analysis
Defendants contend they are entitled to summary judgment on two grounds, that (1) Plaintiff has "failed to state a claim" for deliberate indifference to his serious medical needs; and (2) Plaintiff has failed to exhaust his administrative remedies. The text of the statute indicates that the exhaustion requirement is mandatory and not merely directory. Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997). The Court therefore must consider this ground first.
The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The State of California provides its prisoners and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. See Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). See ici. at 1237-38.
Plaintiff requests both damages and injunctive relief.
Our court of appeals has carved out an exception to the exhaustion requirement if a prisoner seeks "only money damages." Rumbles v Hill, 182 F.3d 1064, 1069 (9th Cir. 1999), cert. denied, 120 S.Ct. 787 (2000). Id. at 1069. But a prisoner seeking money damages and declaratory or injunctive relief, such as plaintiff, must exhaust his available administrative remedies. See Nyhuis v. Reno, 204 F.3d 65, 70-71 nn. 6-7 (3d Cir. 2000) (noting that Rumbles impliedly rejected application of its damages-only exception to cases where prisoner seeks damages and other relief); Terrill v. Brewer, 935 F.2d 1015, 1019 (9th Cir. 1991) (holding that exhaustion of administrative remedies is required where a prisoner is seeking prospective relief in addition to damages in a Bivens action); Rumbles, 182 F.3d at 1069 (stating that Bivens and § 1983 action are identical except for the identity of the actors sued). Plaintiffs mere concern with delay in the administrative remedies process does not justify excusing this statutory requirement. See, e.g., White v. McGinnis, 13 1 F.3d 593, 595 (6th Cir. 1997) (allegations that administrative remedies process is inadequate insufficient to excuse exhaustion requirement). Plaintiff was therefore required to exhaust his claims.
Defendants assert that Plaintiff has filed four administrative appeals (grievances) relating to medical matters. The records attached to their motion show excuse exhaustion requirement). Plaintiff was therefore required to exhaust his claims.
Defendants assert that Plaintiff has filed four administrative appeals (grievances) relating to medical matters. The records attached to their motion show that none of them were appealed to the third (Director) level in Sacramento. In his declaration in support of his response Plaintiff does not refer to the exhaustion issue.
In the argument in response he merely alleges that he "submitted numerous appeals," that Defendants concede they denied them, and that this should be sufficient to exhaust. He does not provide affidavits or discovery to contradict Defendants' assertion that he did not appeal to the third level.
Plaintiff has attached to his "Reply to Defendants' Response to Plaintiffs Opposition [to] Motion for Summary Judgment" a copy of one administrative appeal, which involved his request for a treadmill test, which is not the same as the claims which are presented in his complaint.
In view of the absence of any genuine issue of material fact as to Plaintiffs failure to exhaust, the Defendants' motion for summary judgment will be granted. The case will be dismissed without prejudice to filing a new complaint upon complete exhaustion of all claims, subject of course to any procedural and substantive defenses.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is hereby GRANTED. This case is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies. The Clerk shall close the file.
IT IS SO ORDERED.