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Peter R. Tia, #A1013142 v. Dr. Paderes

December 13, 2012

PETER R. TIA, #A1013142,
PLAINTIFF,
v.
DR. PADERES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER GRANTING MOTION TO DISMISS FOR FAILURE TO EXHAUST

Plaintiff Peter R. Tia is a prisoner confined at the Halawa Correctional Facility ("HCF"). Before the court is Defendants' Dr. Paderes, Dr. Rosen, Mary Tumminello, Linda Rivera, and HCF's "Motion to Dismiss Complaint Filed on July 25, 2011, for Failure to Exhaust Administrative Remedies." ECF #146. Plaintiff filed an Opposition to the Motion on October 31, 2012.*fn1

ECF #149. Defendants have filed a Reply. ECF #153.

The court elects to decide this matter without a hearing pursuant to the Local Rules for the District of Hawaii, LR7.2(d) and Rule 78(b) of the Federal Rules of Civil Procedure. Because Plaintiff failed to fully and properly exhaust his administrative remedies before commencing this action,

Defendants' Motion is GRANTED pursuant to 42 U.S.C. § 1997e(a).

I. BACKGROUND

Plaintiff claims that Dr. Paderes prescribed him an enhanced-calorie special diet on September 1, 2010, that allowed him double portions for dinner and snacks. Tumminello, a prison nurse, allegedly countermanded this diet two weeks later, when she concluded that Plaintiff was overweight. Plaintiff states that, on February 15, 2011, the enhanced-calorie diet was reinstated, but the Department of Public Safety's ("DPS") Medical Director, Dr. Rosen, rescinded it again on April 7, 2011. Plaintiff complains that he has lost one hundred pounds since his incarceration at HCF in July 2008, and alleges that prison officials denied him an enhanced-calorie diet in furtherance of a racially motivated conspiracy against him. Compl., ECF #1 PageID #4. Plaintiff claims that the prison's policy denying enhanced-calorie diets discriminates against indigent inmates like him who cannot afford to purchase extra food to supplement the prison's diet.

II. 42 U.S.C § 1997(e)

"The [PLRA] requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997e(a)); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (quoting Porter v. Nussle, 534 U.S. 516, 525 n.4 (2002)). "'[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.'" Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002) (quoting Porter, 534 U.S. at 532). Exhaustion is mandatory, and "unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam). Even if the prisoner seeks monetary or other relief that is unavailable through the grievance system in question, the prisoner must still first exhaust all available administrative remedies. See Booth v. Churner, 532 U.S. 731, 741 (2001) ("[W]e think that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.").

Section 1997e(a) does not impose a pleading requirement, but rather, provides an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust prison administrative remedies is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20.

III. DISCUSSION

Defendants argue that Plaintiff failed to properly exhaust his prison administrative remedies in compliance with the Hawaii Department of Public Safety's ("DPS") Policy and Procedure Manual ("PPM") which governs inmate grievances and "define[s] the boundaries of proper exhaustion." See Jones, 549 U.S. at 218. Defendants state that Plaintiff failed to timely or fully grieve his claims in compliance with PPM procedures before he filed suit on July 25, 2011. Defs.' Mem. in Support, ECF #146-1.

Plaintiff filed two documents with grievances attached as exhibits since Defendants filed this Motion. See ECF #148, #149. Although these documents provide no explicit or coherent argument against the points raised in the Motion, it is clear that Plaintiff argues that he exhausted his claims, and the court has ...


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