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 On May 20, 2005, the court ordered that plaintiff’s Eighth Amendment claims in his

December 21, 2004 amended complaint be served on defendant Zhu. The court did not order

service of process upon the other defendants listed in plaintiff’s complaint. See 28 U.S.C.

§ 1915A(a). 

2

 Citations to the amended complaint are to the narrative complaint attached to the form

complaint. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RICHARD M. GILMAN, 

Plaintiff, No. CIV S-04-0035 DFL KJM P

vs.

EDWARD S. ALAMEIDA, et al.,

Defendants. FINDINGS & RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with an action for violation of civil

rights under 42 U.S.C. § 1983. Defendant Zhu1 filed a motion to dismiss on August 26, 2005.

In his complaint, plaintiff claims that on July 13, 2003, defendant Zhu approved

plaintiff for placement in segregated housing without consideration of plaintiff’s medical

condition. Am. Compl. at 6.2 Defendant Zhu claims plaintiff has failed to exhaust available

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 On October 27, 2005, the court granted plaintiff thirty days in which to file an amended

opposition to defendant Zhu’s motion to dismiss. Plaintiff has not filed an amended opposition. 

Therefore, the court will consider plaintiff’s original opposition filed on October 7, 2005. 

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administrative remedies with respect to this claim. Plaintiff has filed an opposition3 and

defendant a reply.

A motion to dismiss for failure to exhaust administrative remedies prior to filing

suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d

1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for a failure to exhaust non-judicial

remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at

1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies,

the proper remedy is dismissal of the claim without prejudice. Id.

The Prison Litigation Reform Act provides that “[n]o action shall be brought with

respect to prison conditions under section 1983 of this title, . . . until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). California prison regulations

provide administrative procedures in the form of one informal and three formal levels of review

to address plaintiff’s claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative

procedures generally are exhausted once a prisoner has received a “Director’s Level Decision,”

or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All

steps must be completed before a civil rights action is filed, unless it is shown a step was

unavailable to plaintiff. Ngo v. Woodford, 403 F.3d 620 (9th Cir. 2005). Exhaustion during the

pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d

1198, 1200 (9th Cir. 2002). 

With his motion, defendant has submitted affidavits from two prison employees

attesting that plaintiff never filed a grievance at any level regarding the actions of defendant Zhu

at issue in this case. See Declarations of N. Grannis and M. Cry in Supp. Mot. to Dismiss. In his

opposition, plaintiff fails to overcome defendant’s showing, although he continues to assert he

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has exhausted. Plaintiff has attached a grievance to his opposition, but nothing in the grievance

suggests the matters grieved concern defendant Zhu or his actions challenged now. Therefore,

the court will recommend that plaintiff’s Eighth Amendment claim against defendant Zhu be

dismissed without prejudice for failure to exhaust administrative remedies prior to filing suit.

Additionally, the court notes that on May 20, 2005, it did not order service of

plaintiff’s state law claims because it appeared plaintiff had not pled compliance with the

California Tort Claims Act. After a further review of plaintiff’s amended complaint, it appears

plaintiff did in fact plead compliance with the Tort Claims Act. Am. Compl. at 3. The court has

supplemental jurisdiction over plaintiff’s state law claims under 28 U.S.C. § 1367. However,

when all federal claims have been dismissed before trial, the interests promoted by supplemental

jurisdiction are no longer present, and a court should decline to exercise jurisdiction over state

law claims. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988). Therefore, the

court will recommend that plaintiff’s state law claims be dismissed without prejudice to filing in

state court. 

In accordance with the above, IT IS HEREBY RECOMMENDED that:

1. Defendant Zhu’s August 26, 2005 motion to dismiss be granted;

2. Plaintiff’s Eighth Amendment claim against defendant Zhu be dismissed for

failure to exhaust administrative remedies prior to filing suit;

3. Plaintiff’s state law claims be dismissed without prejudice to filing in state

court; and

4. This case be closed.

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 twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned 

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within ten days after service of the objections. The parties are 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: February 8, 2006.

______________________________________

UNITED STATES MAGISTRATE JUDGE

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gilm0035.57

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