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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

Bart Garber,

Plaintiff, No. CIV S-04-0840 GEB CMK 

vs.

R. Dickenson,

Defendant. ORDER AND

FINDINGS & RECOMMENDATIONS

 /

 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

to 42 U.S.C. § 1983. Currently before the court is defendant’s motion to dismiss plaintiff’s complaint

on the grounds that plaintiff failed to exhaust his administrative remedies prior to filing this action.

(Doc. 17.) Also pending is plaintiff’s August 24, 2005 request for an extension of time to complete

discovery. (Doc. 28.) Plaintiff has filed an opposition to defendant’s motion to dismiss. This matter

is before the undersigned pursuant to Local Rule 302(c) for findings and recommendations. 

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In his complaint, plaintiff originally named twenty-six defendants. By order filed May 1

11, 2004, the court dismissed twenty-five of the defendants, allowing plaintiff’s Eighth

Amendment claims to go forward only against defendant Dickenson. 

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I. Background

At all times relevant to his complaint, plaintiff was incarcerated at Mule Creek State

Prison (Mule Creek) and Pleasant Valley State Prison (Pleasant Valley). Plaintiff states that, while

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at Mule Creek, he underwent surgery to repair wounds on his leg, which were a result of an accident

that plaintiff had prior to his incarceration. Plaintiff claims that, upon his return from the hospital to

Mule Creek, defendant Dickenson, a Medical Technical Assistant ( MTA), failed to follow the

surgeon’s orders regarding dressing changes and pulled skin off of plaintiff’s skin graft in August of

2002. (Pl.’s Am. Compl. at 3A:26-28, 3B:1-10.) Plaintiff also relates that, when he was transferred

to Pleasant Valley, he was seen by a podiatrist who recommended certain shoes for him. (Id. at

3B:26-28, 3C:3-9.) Plaintiff alleges that the shoes were delivered to defendant Dickenson at Mule

Creek, but, in October of 2003, she refused to give plaintiff his shoes. (Id.) 

II. Discussion

Defendant argues that plaintiff’s complaint should be dismissed because plaintiff

failed to exhaust his administrative remedies prior to filing suit. By the Prision Litigation Reform

Act (PLRA), enacted on April 26, 1996, Congress amended 42 U.S.C. § 1997e to provide that “[n]o

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).

The exhaustion of prison administrative procedures is mandated “regardless of the

relief offered through [such] procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001). The United

States Supreme Court has cautioned that it “will not read futility or other exceptions into statutory

exhaustion requirements where Congress has provided otherwise.” Id. at 741 n.6 (2001). The Court

has also ruled that the exhaustion requirement “applies to all inmate suits about prison life, whether

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 State prisoners in California may no longer rely on the holding of Rumbles v. Hill, 182 2

F.3d 1064, 1069 (9th Cir. 1999), that “[e]xhaustion of administrative remedies under section

1997e(a) is not required if a prisoner’s section 1983 claim seeks only monetary damages and if

the correctional facility’s administrative grievance process does not allow for such an award.”

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they involve general circumstances or particular episodes, and whether they allege excessive force

or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

In California, the state regulations that govern grievance procedures in state jails and

prisons provide that inmates “may appeal any departmental decision, action, condition, or policy

which they can demonstrate as having an adverse effect upon their welfare.” Cal. Code Regs. tit. 15,

§ 3084.1(a). An administrative appeal may progress from an informal review through three formal

levels of review. See Cal. Code Regs. tit. 15, § 3084.5. A decision at the third formal level, which

is also referred to as the director’s level, is not appealable and concludes a prisoner’s departmental

administrative remedy. See Cal. Code Regs. tit. 15, §§ 3084.1(a) and 3084.5(e)(2). Departmental

appeals coordinators may summarily deny a prisoner’s untimely administrative appeal. See Cal. Code

Regs. tit. 15, §§ 3084.3(c)(6) and 3084.6(c). To comply with the PLRA exhaustion requirement, a

state prisoner in California must file an inmate appeal on each claim concerning prison conditions

or events and must proceed to the highest level of administrative review available to him before he

seeks judicial relief, regardless of the relief desired by the prisoner.2

The Ninth Circuit has held that the PLRA exhaustion requirement is not jurisdictional.

See Wyatt v. Terhune, 315 F.3d 1108, 1117 n.9 & 1119 n.13 (9th Cir. Jan. 2, 2003) (citing Rumbles

v. Hill, 182 F.3d 1064, 1067-68 (9th Cir. 1999)), petition for cert. filed, (U.S. Apr. 1, 2003) (No. 02-

1486). The Ninth Circuit and six other circuit courts have ruled that the exhaustion requirement does

not impose a pleading requirement on the prisoner but creates a defense that must be raised and

proved by the defendants. See Wyatt, 315 F.3d at 1117-19 (citing cases of the Second, Third,

Seventh, Eighth, and D.C. Circuits); see also Casanova v. Dubois, 304 F.3d 75, 77-78 (1st Cir. 2002).

But see Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998) (per curiam) (requiring a prisoner

to plead exhaustion and provide a copy, if available, of the

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Plaintiff’s fifth administrative appeal was filed in August 2004, after he filed this action. 3

This appeal also does not reference plaintiff’s allegations against defendant. (Doc. 18, Decl. of

N. Grannis and doc. 18, Ex. E.) 

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 administrative decision disposing of the prisoner’s claims); Knuckles El v. Toombs, 215 F.3d 640,

642 (6th Cir. 2000).

In the instant action, the record shows that, prior to filing suit, plaintiff had filed four

administrative complaints that proceeded to the Director’s Level—the final level of review. (Doc.

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18, Decl. of N. Grannis, ¶ 5 and doc. 18, Ex. A.) Two of those appeals originated from Mule Creek.

(Doc. 18, Decl. of N. Grannis, ¶ ¶ 6&7.) The first appeal from Mule Creek was received at the

Inmate Appeals Branch (IAB) on April 15, 2002, and concerned plaintiff’s allegations that he was

being denied proper medical treatment by an orthopedic surgeon. (Id. at ¶ 6.) This appeal was filed

prior to defendant’s alleged failure to follow the doctor’s orders for changing plaintiff’s dressings in

August 2002 and prior to defendant’s alleged refusal to give plaintiff his recommended footwear in

October of 2003. (Id.) The second appeal from Mule Creek was received by IAB on July 11, 2002,

and addressed plaintiff’s foot pain and walking problems. (Id. at ¶ 7.) This appeal was also filed

prior to defendant’s alleged violations of plaintiff’s rights. 

Plaintiff’s next two appeals originated from Pleasant Valley. (Id. at ¶ 8.) His third

appeal alleged that plaintiff had been kept waiting too long prior to receiving treatment for his leg;

it did not mention his allegations against defendant. (Id.) Plaintiff’s fourth appeal concerned

transfers and does not reference plaintiff’s allegations against defendant. 

In his opposition to defendant’s motion to dismiss, plaintiff argues that he did exhaust

his administrative remedies. (Doc. 21.) Although plaintiff admits that he “never directly name[d]

any specific individuals in the appeal” he did specify that he “suffered extreme pain” due to

deliberate indifference of the staff at Mule Creek. (Doc. 21, Opp’n to Mot. to Dismiss at pg. 1-2.)

Plaintiff also notes that defendant Dickenson was employed by Mule Creek. 

The undersigned finds that defendant has met her burden of showing that plaintiff

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failed to exhaust his administrative record prior to filing this suit. As noted above, defendant has

provided evidence showing that none of plaintiff’s administrative appeals specifically mentioned his

allegations against her. Further, plaintiff’s general allegations of pain and suffering caused by

employees at Mule Creek are not enough to satisfy the purposes of the PLRA’s exhaustion

requirement allowing the Department of Corrections the first opportunity to resolve a controversy

before court intervention and to promote judicial efficiency by resolving the dispute outside of court

or by producing a factual record that can aid the court in processing a plaintiff’s claim. See

McCarthy v. Madigan, 503 U.S. 140, 145-46 (1992). 

III. Conclusion

Based on the foregoing, IT IS ORDERED THAT plaintiff’s request for an extension

of time to complete discovery (doc. 18) be DENIED without prejudice to renewal at a later date.

IT IS RECOMMENDED THAT plaintiff’s complaint be dismissed without prejudice

for failure to exhaust his administrative remedies under the PLRA prior to filing suit. 

These findings and recommendations are submitted to the United States District

 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days after

being served with these findings and recommendations, plaintiff may file written objections with the

court. The document should be captioned “Objections to Magistrate Judge's Findings and

Recommendations.” Plaintiff is advised that failure to file objections within the specified

time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th

Cir. 1991).

DATED: August 29, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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