Bermudez v. Yates
Filing
25
ORDER GRANTING 20 Motion to Dismiss, signed by District Judge Frank R. Zapata on 03/08/2010.CASE CLOSED (Martin, S)
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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 On February 4, 2010, the Court issued an Order that stated in relevant part: "A review of the record reflects that Defendants' filed a motion to dismiss on October 8, 2009. Thereafter, the Court issued a Wyatt notice to Plaintiff informing him that he was required to respond; the response was due on approximately November 27, 2009. Plaintiff failed to file a response as required. Thereafter, in December of 2009, Defendants filed a notice that Plaintiff failed to file his required response. On January 6, 2010, Plaintiff filed a document stating that he has encountered various problems in obtaining the paperwork he thinks he needs to oppose the motion to dismiss, states that he does not want the case dismissed, and states that he will file his response as soon as possible. The Court has been waiting for a response from Plaintiff for many months. Plaintiff has had since October 8, 2009 to attempt to gather materials and file his response. As of the date of this Order (2/4/10), the Court still has not received a response from Plaintiff; Plaintiff has had nearly four months to file a response. The Court will not permit this dispositive motion to remain pending indefinitely as it has already caused many months of delay in this case. This Court, among many others, voluntarily accepted 15 cases from the Eastern District of California as part of the effort of the Ninth Circuit to expedite the backlog of cases in the Eastern District of California. Allowing this dispositive motion
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I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA
Wilfredo Bermudez, Plaintiff, vs. J o h n s o n and "Others", Defendants.
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N o . CV 1-06-1247-FRZ ORDER
P u r s u a n t to his Second Amended Complaint, Plaintiff has pursued this civil rights a c tio n under 42 U.S.C. § 1983 against six Defendants employed by the California D e p a rtm e n t of Correction and Rehabilitation ("CDC"). Defendants move to dismiss the e n tire case on the ground that Plaintiff has failed to exhaust his administrative remedies as to the only two claims/counts alleged in this case. Although the Court sent the Notice req u ired under Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003), advising Plaintiff o f his obligation to respond, he did not do so. The motion is ready for ruling.1
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T h e Court will grant the motion and dismiss the case without prejudice. I . BACKGROUND F a c ts Alleged in Plaintiff's Second Amended Complaint P la in tif f sues Pleasant Valley State Prison ("PVSP") employees Nurse Johnson; M e d ic a l Technical Assistants Harper and Brewer; and Correctional Officers ("CO") L o n g o ria , Montez, and Ramirez. Plaintiff presents the following facts in his Second A m e n d e d Complaint.2 C ount 1 O n January 11, 2006, Plaintiff was suffering from "inflamed severe complications of h is pre-diagnosed medical condition [herpes zoster-shingles] to his face/eyes" that caused " se v e re pain, irritation, visual impairment, and limited his mobility." Plaintiff submitted the s ta n d a rd Health Care Service Request Form and a correctional officer took him to the m e d ica l unit. Upon arrival to the medical unit, Harper and Brewer saw Plaintiff and his c o n d itio n , but deliberately ignored and refused to provide Plaintiff with medical treatment. P la in tif f then stopped Johnson and asked for assistance, but she also refused to provide P la in tif f with any medical treatment. As a result of Harper, Brewer, and Johnson's refusal to provide Plaintiff with any treatment, he experienced extreme pain, visual impairment, and in f la m m a tio n for an additional six days before he was evaluated by a doctor and sent to the h o s p ita l.
to remain pending has already caused many months of delay in this case, clogs the Court's already heavy docket, and defeats the purpose of voluntarily accepting cases from the Eastern District of California. As such, Plaintiff will have one final opportunity to file his response to the motion to dismiss. IT IS HEREBY ORDERED that Plaintiff shall file his response to the motion to dismiss no later than February 19, 2010. If Plaintiff fails to file his response by February 19, 2010, the Court will rule on Defendants' motion to dismiss without the benefit of Plaintiff's response and without further notice to Plaintiff." See Doc. #24 (emphasis in the original). As of the date of this Order, Plaintiff has failed to file a response to the motion to dismiss. The Court notes that a verified complaint may be used as an affidavit if it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). -22
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C ount 2 O n March 13, 2006, Plaintiff was informed during the evening meal that his g ra n d m o th e r had passed away. Plaintiff asked Ramirez if he could return to his housing unit; R a m ire z gave Plaintiff permission to leave and Plaintiff left the dining hall. Plaintiff then e n c o u n te re d Longoria who, for unknown reasons, began "slandering, taunting, harassing[,] a n d humiliating" Plaintiff. Montez told Plaintiff to ignore Longoria and then ordered P la in tif f to turn around to be handcuffed; Plaintiff complied with the request. Montez then to o k Plaintiff's left hand and "aggressively placed [him] in handcuffs. Longoria then assisted R a m i re z in slamming Plaintiff against the wall, yelling obscenities at him, which caused in ju rie s to Plaintiff's shoulder, left eye, and wrists. II. DISCUSSION U n d e r the Prison Litigation Reform Act ("PLRA"), a prisoner must exhaust available a d m in is tra tiv e remedies before bringing a federal action concerning prison conditions. See 4 2 U.S.C. § 1997e(a); Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), re g a rd le s s of the type of relief offered through the administrative process, Booth v. Churner, 5 3 2 U.S. 731, 741 (2001). A prisoner must complete the administrative review process in a c c o rd a n c e with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). Exhaustion is an affirmative defense. Jones v. Bock, 549 U.S. 199, 212 (2007). Thus, th e defendant bears the burden of raising and proving the absence of exhaustion. Wyatt v. T e r h u n e , 315 F.3d 1108, 1119 (9th Cir. 2003). Because exhaustion is a matter of abatement in an unenumerated Rule 12(b) motion, a court may look beyond the pleadings to decide d isp u ted issues of fact. Id. at 1119-20. Further, a court has broad discretion as to the m e th o d to be used in resolving the factual dispute. Ritza v. Int'l Longshoremen's & W a r e h o u se m e n 's Union, 837 F.2d 365, 369 (9th Cir. 1988) (quotation omitted). T h e CDC provides an administrative grievance procedure for prisoners. See Cal. C o d e . Regs., Title 15 §3084, et seq. "Any inmate or parolee under the department's
ju ris d ic tio n may appeal any departmental decision, action, condition, or policy which they -3-
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c a n demonstrate as having an adverse effect upon their welfare . . . An appellant must submit th e appeal within 15 working days of the event or decision being appealed, or of receiving a n unacceptable lower level appeal decision." See id. at §3084.1(a) and §3084.6(c). The C D C provides four levels of appeal which includes the informal level, first formal level, s e c o n d formal level, and the third formal level which is referred to as the director's level; the d ire c to r' s level appeal is final and exhausts all administrative remedies within the CDC. See id . at §3084.5; Irvin v. Zamora, 161 F.Supp. 2d 1125, 1129 (S.D. Cal. 2001). An inmate m u s t proceed to the director's level to properly exhaust administrative remedies and therefore p rio r to seeking judicial relief. See Booth v. Churner, 532 U.S. 731, 739 (2001). A review of the record reflects that Plaintiff failed to properly exhaust his a d m i n is tra tiv e remedies as to his claims for denial of medical care and excessive force. P la in tif f failed to comply with regulations which required him to file his administrative a p p e a ls within 15 working days of the alleged incidents; as Plaintiff failed to do this, CDC s ta f f screened out his appeals as untimely and never reached the merits of his appeals. Thus, a s Plaintiff failed to properly exhaust his administrative remedies, Defendants' motion to d is m is s is granted. I I I . CONCLUSION A c c o r d in g ly, IT IS HEREBY ORDERED as follows: ( 1 ) Defendants motion to dismiss (Doc. #20) is granted. (2) This case is dismissed. (3) The Clerk of the Court shall enter judgment and close the file in this case. DATED this 8 th day of March, 2010.
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