1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CLINTON HECK,

Plaintiff,

v.

MARK STERN, et al.,

Defendants.

Case No. C06-5030 RJB/KLS

REPORT AND RECOMMENDATION

 NOTED FOR: September 1, 2006

This 42 U.S.C. § 1983 civil rights action has been referred to United States Magistrate Judge

Karen L. Strombom pursuant to Title 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Presently before

the court is the motion to dismiss of Defendant Marc Stern. (Dkt. # 45). Defendant claims that plaintiff

has failed to exhaust his administrative remedies. For the reasons stated below, the court recommends

that the motion to dismiss be granted and plaintiff’s amended complaint be dismissed without prejudice. 

I. PROCEDURAL & FACTUAL BACKGROUND

A. Procedural History

Plaintiff is a Washington State inmate currently incarcerated at the Stafford Creek

Correctional Center (SCCC). (Dkt. # 1). Plaintiff was granted leave to proceed in forma

pauperis. (Dkt. # 7). On March 7, 2006, plaintiff filed a complaint naming Defendant Stern and

Case 3:06-cv-05030-RJB Document 54 Filed 08/03/06 Page 1 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 2

others as defendants. (Dkt. # 7). Plaintiff alleges that his Eighth Amendment rights were violated

because the Department of Corrections (DOC) removed the medications he was taking for his

Attention Deficit Disorder (ADD). On May 23, 2006, plaintiff filed an Amended Complaint,

naming additional new defendants and adding claims under the Americans with Disabilities Act. 

(Dkt. # 24). Other than Defendant Stern, no defendants have been served. By Order dated July

18, 2006, plaintiff was advised to provide service forms and copies by August 18, 2006 for service

of the Amended Complaint upon the additional defendants. (Dkt. # 51). Since filing his Amended

Complaint, plaintiff filed a second preliminary injunction (Dkt. # 23), a motion for summary

judgment (Dkt. # 35) and a motion for default (Dkt. # 38). These motions are the subject of

pending Reports and Recommendations. (Dkt. # 50, 52) . By separate Order (Dkt. # 53), the

court has stayed discovery until resolution of this threshold issue of whether plaintiff has exhausted

his administrative remedies. 

B. Grievance Process.

The Washington Offender Grievance Program has been in existence since the early 1980s.

(Dkt. # 45, Exh. 1 (Declaration of Dennis Dahne, Grievance Coordinator at SCCC), ¶ 2). It was

implemented shortly thereafter statewide. (Id.). Each DOC offender is aware of the grievance

program. (Id. at ¶ 8). Inmates may challenge a variety of things within the prison system,

including DOC policies, rules and procedures. (Id. at ¶ 4). DOC’s grievance program has a multitiered approach to address offender grievances. (Id. at ¶ 6). The first level is the initial grievance,

considered Level I. (Id.). Grievances are filed at this level when an offender is challenging a policy

or procedure. (Id.). After receiving the response from the institution’s grievance coordinator, the

offender can submit an appeal of that decision in a Level II grievance. (Id.). These grievances are

Case 3:06-cv-05030-RJB Document 54 Filed 08/03/06 Page 2 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 3

investigated further and the Superintendent at each facility responds. (Id.). Finally, if an offender

does not agree with the Superintendent’s response, he or she may file a Level III grievance that is

submitted to the headquarters Grievance Coordinator in Tumwater, Washington. (Id.) Level III

grievances are the final step. (Id.). 

Plaintiff alleges medical staff and the DOC Medical Director violated his civil rights by

discontinuing the use of certain medications to treat his ADD. Specifically, plaintiff was told he

would no longer be prescribed Adderall. (Dkt. # 24, p. 1-2). In his First Complaint, plaintiff

admits that “[t]he grievance process is not complete but [the] situation calls for court action

immediately due to the medical aspects surrounding this case.” (Id. at p. 2). Plaintiff attached one

initial grievance he filed regarding the discontinuance of his medication on January 8, 2006. (Dkt.

# 24, Attach. 2). The response provided to this grievance was that paperwork was being prepared. 

(Id.). Plaintiff provides no further documentation regarding grievances he may have filed regarding

his medications, other than kites. Kites are not part of the formal grievance process. (See Dkt. #

45, Exh. 1). 

Plaintiff did not file a next level grievance for his initial grievance and the time has passed

for him to do so. (Id.). According to DOC officials at SCCC, Plaintiff filed another grievance on

June 13, 2006, but this was again only an initial grievance. (Id., at Attach. B). A response to that

grievance has not yet been provided and a second level appeal has not been submitted. (Id.). 

Plaintiff does not deny that he has not completed the grievance process, but claims that

Dennis Dahne committed perjury when he declared that plaintiff did not appeal the January 8, 2006

grievance. (Dkt. #47). Plaintiff claims that Mr. Dahne did not properly file his grievance because

the form returned to him does not contain a log number. (Id.). The record is clear, however, that

the grievance was filed, plaintiff did not appeal the grievance, and plaintiff has not completed the

Case 3:06-cv-05030-RJB Document 54 Filed 08/03/06 Page 3 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 4

grievance process at this time.

II. DISCUSSION

A motion to dismiss for failure to exhaust administrative remedies is properly brought as an

unenumerated 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (citations

omitted). On a motion to dismiss, material allegations of the complaint are taken as admitted and

the complaint is to be liberally construed in favor of the plaintiff. Jenkins v. McKeithen, 395 U.S.

411, 421 (1969), reh’g denied, 396 U.S. 869 (1969); Sherman v. Yakahi, 549 F.2d 1287, 1290

(9th Cir. 1977). While the court can liberally construe a plaintiff’s complaint, it cannot supply an

essential fact an inmate has failed to plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)

(quoting Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). 

When considering whether to dismiss a complaint for lack of exhaustion of administrative

remedies, a court may look outside the pleadings to determine whether the issue has been

exhausted. Id. at 1119-20. When dismissal is based on failure to exhaust administrative remedies,

the dismissal should be without prejudice. Wyatt, 315 F.3d at 1120. 

The Prison Litigation Reform Act (“PLRA”) requires exhaustion of administrative remedies

prior to filing a complaint in federal court. The relevant portion of the PLRA states:

No action shall be brought with respect to prison conditions under section 1983 of

this title, 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). 

This requirement “applies to all prisoners seeking redress for prison circumstances or

Case 3:06-cv-05030-RJB Document 54 Filed 08/03/06 Page 4 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 5

occurrences.” Porter v. Nussle, 534 U.S. 516, 520 (2002). Further, “[a]ll ‘available’ remedies”

must be exhausted, “[e]ven when the prisoner seeks relief not available in grievance proceedings.”

Id. at 524. Inmates must exhaust prison grievance remedies before filing suit if the grievance

system is capable of providing any relief or taking any action in response to the grievance. Booth v.

Churner, 531 U.S. 956, 121 S. Ct. 1819, 1825 (2001). 

The Supreme Court recently reaffirmed this in Woodford v. Ngo. 548 U.S. ___, No. 05-

416 at 1 (2006). In that case, the Court not only upheld the requirement that the inmates fully

exhaust available administrative remedies, but it also held that those attempts needed to be done in

a timely manner. Id. at 11. 

On January 8, 2006, Plaintiff filed a grievance when a change was made to the DOC

formulary which stopped plaintiff’s treatment with Adderall. (Dkt. # 24, Attach. 2). Plaintiff did

not appeal that grievance. (Dkt. # 45, Exh. 1). Plaintiff has not filed any appeals or Level II

grievances for that grievance. (Id.). On June 13, 2006, Plaintiff again filed a grievance because he

was not granted an exception to the DOC formulary. (Id., Attach. B). Plaintiff received a

response that a non-formulary request was made and denied. (Id.). Plaintiff has not appealed that

determination to Level II. (Id.).

Accordingly, the record reflects that plaintiff filed his lawsuit prematurely and has not yet

fully exhausted his administrative remedies. Because plaintiff failed to exhaust his available

administrative remedies, his entire case should be dismissed. 

III. CONCLUSION

For the reasons stated above the court should GRANT Defendant Stern’s motion to dismiss

(Dkt. # 45) and plaintiff’s Amended Complaint (Dkt. # 24) should be DISMISSED WITHOUT

Case 3:06-cv-05030-RJB Document 54 Filed 08/03/06 Page 5 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 6

PREJUDICE. A proposed order accompanies this Report and Recommendation. 

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure,

the parties shall have ten (10) days from service of this Report and Recommendation to file written

objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those

objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the

time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on

September 1, 2006, as noted in the caption. 

DATED this 2nd day of August, 2006.

A

Karen L. Strombom

United States Magistrate Judge

Case 3:06-cv-05030-RJB Document 54 Filed 08/03/06 Page 6 of 6