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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

DARREL WAYNE VANDERGRIFF,

Plaintiff,

v.

TONY GAMBONE et al.,

Defendants.

Case No. C06-5381RBL

REPORT AND

RECOMMENDATION

NOTED FOR:

DECEMBER 8th, 2006

This Civil Rights action, brought under 42 U.S.C. 1983, has been referred to the undersigned

Magistrate Judge pursuant to Title 28 U.S.C. § 636(b)(1)(B). The plaintiff has been granted leave to

proceed in forma pauperis.

Before the court is defendants motion to dismiss for failure to exhaust administrative

remedies (Dkt. # 31). Plaintiff has responded ,(Dkt. # 32), defendants have replied (Dkt. # 35). This

matter is now ripe for review.

FACTS

There are eight named defendants in this action. They are Anthony Gambone, Dean Mason,

Arnold Morton, Vera Talseth, Robert “Rusty” Smith, Allen Hayter, Stephen Hixson, and Timothy

Panek. Plaintiff’s complaint raises Eighth Amendment claims for deliberate indifference to medical

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needs. Plaintiff also names some of the defendants as a result of their handling of or responding to

grievances (Dkt. #6).

Defendants move to dismiss and place before the court the record of grievances filed by

plaintiff that are relative to the complaint (Dkt. # 31-2). The record shows that only one grievance

was exhausted through the grievance process (Dkt. # 31-2, pages 23 to 27). This grievance involves

health care services delivered to plaintiff by defendant Gambone in early May of 2005. No other

issue or claim in this action has been exhausted. Defendants argue the entire action should be

dismissed (Dkt. # 31).

Plaintiff argues it took ten months to exhaust one grievance and the system simply does not

work (Dkt. # 32). Plaintiff asks the court to take into account the failures on the part of the

grievance system to follow its own time lines and asks the court declare the system “Moot” (Dkt. #

32 pages 7 and 8).

STANDARD

Defendants challenge the complaint on the grounds that plaintiff has failed to exhaust

administrative remedies. (Dkt. # 31). A motion to dismiss for failure to exhaust administrative

remedies is an unenumerated 12 (b) motion. The court may consider evidence outside the pleading

without converting the motion to a motion for summary judgement. The burden of pleading and

proving failure to exhaust administrative remedies in the civil rights context is normally defendants. 

Wyatt v. Terhune, 315 F3d. 1108 (9th Cir. 2003). 

DISCUSSION

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

to filing a complaint in federal court. The relevant portion of the act 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).

Here, plaintiff filed this action while incarcerated and the act applies to him. The United States

Supreme Court determined that Congress enacted the provision in order to reduce the quantity and

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improve the quality of prisoner suits. Porter v. Nussle, 534 U.S. 516 (2002). By mandating exhaustion,

Congress enabled corrections officials to address prisoner complaints internally. Where exhaustion was

once discretionary, it is now mandatory. “All ‘available’ remedies must now be exhausted; those

remedies need not meet federal standards, nor must they be ‘plain, speedy, and effective.’” Porter v.

Nussle, 534 U.S. 516 (2002) (quoting Booth v. Churner, 532 U.S. 731, 739 (2001)). The Porter Court

ruled that “§ 1997e(a)’s exhaustion requirement applies to all prisoners seeking redress for prison

circumstances or occurrences.” Porter, 534 U.S. at 520.

Defendants have placed plaintiff’s grievance record before the court and show only one issue in

this action was exhausted (Dkt. # 31-2) Plaintiff has failed to exhaust available remedies prior to filing

this action. Accordingly, all unexhausted claims should be DISMISSED WITHOUT PREJUDICE.

The only claim that should remain in this action is the exhausted claim regarding the health care

plaintiff received from defendant Gambone in May 0f 2005. While defendants argue this claim should

also be dismissed, the court disagrees. There is no judicial savings in dismissing any claim where the

claim can simply be re-filed immediately as a free standing action in and of itself. 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 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 December 8th, 2006, as noted in the

caption. 

DATED this 16th, day of November, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge 

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