(PC) Lomako v. CSP Corcoran et al, No. 1:2007cv01877 - Document 39 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion Requesting the Court to Treat his Opposition as Timely Filed be Granted; and Defendants' 28 Motion to Dismiss, Filed on October 6, 2009, be Denied signed by Magistrate Judge Sheila K. Oberto on 07/06/2010. Referred to Judge Wanger; Objections to F&R due by 8/9/2010. (Flores, E)
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(PC) Lomako v. CSP Corcoran et al Doc. 39 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JUSTIN LOMAKO, 10 Plaintiff, 11 12 CASE NO. 1:07-cv-01877-OWW-SKO PC FINDINGS AND RECOMMENDATIONS v. (Docs. 28, 33) CSP CORCORAN, et al., 13 OBJECTIONS DUE WITHIN 30 DAYS Defendants. / 14 15 Plaintiff Justin Lomako (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 6, 2009, Defendants 17 filed a motion to dismiss on the ground that Plaintiff failed to exhaust his administrative remedies 18 prior to filing suit. (Doc. #28.) On November 6, 2009, Defendants filed a declaration noting that 19 Plaintiff failed to file an opposition to their motion to dismiss within the time limits set by the Local 20 Rules. (Doc. #31.) On November 30, 2009, Plaintiff filed a motion requesting that the Court notify 21 Defendants that their motion to dismiss was defectively noticed and requesting that his opposition 22 be regarded as timely filed. (Doc. #33.) Plaintiff filed an opposition and declaration in support of 23 his opposition concurrently with his motion. (Docs. #34, 35.) On December 7, 2009, Defendants 24 filed a reply to Plaintiff’s opposition and motion. (Doc. #36.) 25 I. Background 26 A. 27 This action proceeds on Plaintiff’s fourth amended complaint, filed on April 7, 2009. (Doc. 28 #18.) Although Plaintiff’s fourth amended complaint set forth four separate claims (Claims 1-4), Plaintiff’s Complaint 1 Dockets.Justia.com 1 the Court dismissed Claims 2-4 because they were improperly joined. (Order Re: Findings & 2 Recommendations 2:4, June 8, 2009.) 3 Claim 1 of Plaintiff’s fourth amended complaint alleged that Defendants L. Cano and J. Jones 4 violated Plaintiff’s rights under the Eighth Amendment. Plaintiff alleged that he was housed in a 5 top tier unit at the California State Prison in Corcoran, California. (“CSP-Corcoran”). Plaintiff 6 claims that he was taking psychotropic medication and the medication, combined with the heat, 7 caused Plaintiff to pass out on several occasions. On one occasion, Plaintiff passed out and fell, 8 causing injuries to his back and neck. Plaintiff complains that he submitted a request for 9 accommodation about the heat on June 26, 2006. The request was denied by Cano and Jones. 10 B. 11 Defendants argue that they are entitled to a dismissal due to Plaintiff’s failure to exhaust his 12 administrative remedies prior to filing suit. (Defs. Cano and Jones’ Notice of Mot. and Mot. to 13 Dismiss 1:17-20.) Defendants argue that the Prison Litigation Reform Act of 1995 (“PLRA”) 14 requires prisoners to exhaust all administrative remedies prior to filing suit. (Defs. Cano and Jones’ 15 Mem. of P. & A. in Supp. of Their Mot. to Dismiss 4:16-20.) Defendants further argue that 16 exhaustion consists of an informal level of review and three formal levels of review. (P. & A. in 17 Supp. of Mot. to Dismiss 2:12-14.) Defendants allege that no inmate appeal was submitted by 18 Plaintiff between June 9, 2006 and August 3, 2006 that was screened out. (P. & A. in Supp. of Mot. 19 to Dismiss 3:11-12.) However, Plaintiff did submit three “requests for accommodation” that were 20 forwarded to the appeals office and screened. (P. & A. in Supp. of Mot. to Dismiss 2:15-3:13.) A 21 request for accommodation was received on September 7, 2006 and granted. (P. & A. in Supp. of 22 Mot. to Dismiss 3:13-14.) A second request for accommodation was received on November 9, 2006 23 and granted in part. (P. & A. in Supp. of Mot. to Dismiss 3:14-15.) A third request for 24 accommodation was received on December 18, 2006 and granted in part.1 (P. & A. in Supp. of Mot. 25 to Dismiss 3:15-4:1.) Defendants allege that Plaintiff submitted only one appeal in 2006 that went 26 /// Defendants’ Motion to Dismiss 27 1 28 These three requests for accommodation do not appear to be related to the claims in this action. Neither party has identified the subjects of these requests. 2 1 to the final third formal level of review, but the appeal concerned Plaintiff’s mail. (P. & A. in Supp. 2 of Mot. to Dismiss 4:2-4.) 3 On November 30, 2009, Defendants filed a declaration noting that Plaintiff failed to oppose 4 Defendants’ motion to dismiss. (Decl. of Counsel in Lieu of Reply to Opp’n to Defs. Cano and 5 Jones’ Mot. to Dismiss 2:1-2.) Defendants note that Plaintiff’s opposition was due October 27, 6 2009--21 days after the service of Defendants’ motion to dismiss. (Decl. of Counsel in Lieu of Reply 7 1:26-27.) 8 C. 9 On November 30, 2009, Plaintiff filed his opposition along with a motion requesting that the 10 Court treat Plaintiff’s opposition as timely filed. Plaintiff argues that “Defendants misapplied the 11 local rules of this court making it impossible to determine a due date for the opposition.” (Pl.’s 12 Requests to: (1) Have the Clerk of This Court Notify Defs. of Defectively Noticed Mot., (2) Have 13 His Concurrently Submitted Opp’n to Defs.’ Mot. to Dismiss Deemed Timely Filed; and Decl. in 14 Supp. Thereof 1:20-24.) Plaintiff’s Opposition 15 Plaintiff claims that he did not know when his opposition was due because he believed that 16 the time limits set forth in Local Rule 78-230(m)2 no longer applied to this case because Plaintiff 17 was released from custody on August 23, 2009. (Pl.’s Requests 1:25-2:3.) Local Rule 230(l) sets 18 forth rules regarding motion practice and deadlines in cases where one party is incarcerated. Plaintiff 19 claims that Local Rule 78-230(b) (now numbered as Local Rule 230(b)) applies in this case and that 20 his opposition is due no later than 14 days prior to the noticed hearing date for Defendants’ motion. 21 (Pl.’s Requests 2:7-10.) Plaintiff argues that Defendants did not properly notice their motion on the 22 motion calendar and that Plaintiff’s opposition should be regarded as timely. (Pl.’s Requests 2:10- 23 15.) 24 In his opposition, Plaintiff argues that he exhausted his administrative remedies. (Pl.’s Opp’n 25 to Defendant’s[sic] Mot. to Dismiss 1:17-18.) Plaintiff claims that he filed a “request for 26 accommodation” to be reassigned to a location that was not extremely hot. (Opp’n 2:2-6.) 27 2 28 The Local Rules were amended on December 1, 2009 resulting in Local Rule 78-230(m) being renumbered as Local Rule 230(l). The Court will refer to the rule using the current number, 230(l). 3 1 Plaintiff’s request was assigned a log number of “CSPC-6-06-02526.” (Opp’n 2:6.) The request was 2 filed on June 30, 2006 and a response was due on August 14, 2006. (Opp’n 16-17.) Plaintiff claims 3 that Defendants’ own records indicated that the request was recorded as “completed” and “the 4 Disposition was listed as withdrawn.” (Opp’n 2:20-21.) Plaintiff claims that he never withdrew his 5 request. (Opp’n 2:21-22.) 6 Plaintiff contends that on August 31, 2006, Defendant Jones sent Plaintiff a letter referencing 7 CSPC-6-06-02526 telling Plaintiff to complete “section ‘F’ of the 602 form.” (Opp’n 3:2-4.) The 8 letter stated that Plaintiff “[has] 15 days from the 8-3-06 to submit [sic].” (Opp’n 3:4-5.) Thus, the 9 letter was delivered after Plaintiff’s response was due. Plaintiff nonetheless completed the form and 10 sent it back. (Opp’n 3:10-11.) On September 7, 2006, Plaintiff received a letter from Defendant 11 Cano informing Plaintiff that he failed to meet the time constraints for filing his form. (Opp’n 3:13- 12 16.) Plaintiff claims that there was nothing further that Plaintiff could have done to obtain 13 administrative relief. (Opp’n 3:17-18.) 14 D. 15 Defendants argue in reply that Plaintiff did not exhaust his administrative remedies and that 16 their motion was not improperly noticed because Local Rule 230(l) applies in this case until the 17 Court explicitly orders otherwise. Defendants argue that CSPC-6-06-02526 did not exhaust 18 Plaintiff’s administrative remedies because the request was withdrawn at the first formal level of 19 review on August 9, 2006 and, therefore, Plaintiff did not complete the appeal process. (Defs. Cano 20 and Jones’ Reply to the Pl.’s Opp’n to Their Mot. to Dismiss 2:7-11.) Defendants also argue that 21 CSPC-6-06-02526 cannot be said to have exhausted Plaintiff’s administrative remedies because the 22 request concerned Plaintiff’s request to be housed in a lower tier. (Reply 2:15-16.) In contrast, 23 Plaintiff’s claim in this action is based on Cano and Jones’ failure to process Plaintiff’s inmate 24 request. (Reply 2:17-21.) Thus, Defendants argue that in order to exhaust, Plaintiff must have filed 25 a separate administrative appeal that complained about Cano and Jones’ failure to process CSPC-6- 26 06-02526. Defendants’ Reply 27 Defendants also argue that their motion was properly noticed because Local Rule 230(l) 28 continues to apply to this case. (Reply 3:5-18.) Defendants note that the Court ordered that Local 4 1 Rule 230(l) shall apply in this case unless otherwise ordered. (Reply 3:14-16.) The Court notes that 2 it has not issued an order stating that Local Rule 230(l) no longer applies. 3 II. Discussion 4 A. 5 Plaintiff asserts that Local Rule 230(l) no longer applies in this action because Plaintiff is no 6 longer incarcerated. For the purpose of clarity, the Court will reiterate that Local Rule 230(l) will 7 continue to apply in this case until the Court explicitly orders otherwise. Therefore, Plaintiff’s 8 opposition was untimely. However, given Plaintiff’s pro se status and the reasonableness of the 9 mistake, the Court will not issue sanctions and will treat Plaintiff’s opposition as timely filed. The 10 Court will recommend that Plaintiff’s motion requesting that the Court treat his opposition as timely 11 be granted. Applicability of Local Rule 230(l) 12 B. 13 Defendants argue that they are entitled to a dismissal of this action because Plaintiff failed 14 to exhaust his administrative remedies prior to filing suit. “No action shall be brought with respect 15 to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in 16 any jail, prison, or other correctional facility until such administrative remedies as are available are 17 exhausted.” 42 U.S.C. § 1997e(a). The section 1997e(a) exhaustion requirement applies to all 18 prisoner suits relating to prison life. Porter v. Nussle, 435 U.S. 516, 532 (2002). The PLRA 19 exhaustion requirement requires proper exhaustion. Woodford v. Ngo, 548 U.S. 81, 93 (2006). 20 “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural 21 rules. . . .” Id. at 90-91. The proper exhaustion requirement serves two important purposes: 1) it 22 gives an agency the opportunity to correct its own mistakes before it is brought into federal court and 23 it discourages disregard of the agency’s procedures; and 2) it promotes efficiency because claims can 24 be resolved much more quickly and economically in proceedings before an agency than in litigation 25 in federal court. Id. at 89. Failure to Exhaust 26 Prisoners must complete the prison’s administrative process, regardless of the relief sought 27 by the prisoner and regardless of the relief offered by the process, as long as the administrative 28 process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741 5 1 (2001). Thus, prisoners cannot evade the exhaustion requirement by limiting their request for relief 2 to forms of relief that are not offered through administrative grievance mechanisms. Id. (prisoners 3 cannot skip administrative process by simply limiting prayers for relief to money damages not 4 offered through administrative grievance mechanisms). Thus, prisoners may not cease pursuing 5 administrative appeals simply because the appeal process does not offer the form of relief that they 6 seek. “All ‘available’ remedies must now be exhausted; those remedies need not meet federal 7 standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524 (citing Booth v. 8 Churner, 532 U.S. 731, 739 n.5 (2001)). However, “a prisoner need not press on to exhaust further 9 levels of review once he has either received all ‘available’ remedies at an intermediate level of 10 review or been reliably informed by an administrator that no remedies are available.” Brown v. 11 Valoff, 422 F.3d 926 (9th Cir. 2005). 12 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 13 defense which Defendants have the burden of raising and proving. Wyatt v. Terhune, 315 F.3d 14 1108, 1119 (9th Cir. 2003). The failure to exhaust nonjudicial administrative remedies that are not 15 jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment 16 motion. Id. at 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 17 368 (9th Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust 18 administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact. 19 Id. at 1119-20. If the court concludes that the prisoner has failed to exhaust administrative remedies, 20 the proper remedy is dismissal without prejudice. Id. 21 The Ninth Circuit has held that a prisoner’s failure to timely exhaust his administrative 22 remedies is excused when a prisoner takes reasonable and appropriate steps to exhaust his 23 administrative remedies but was precluded from exhausting not through fault of his own, but by a 24 prison official’s mistake. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (exhaustion 25 excused when prisoner was mistakenly told that he needed to read a Program Statement to pursue 26 his grievance but the Program Statement cited was unavailable to him). Other circuits have held that 27 the exhaustion requirement is satisfied when prison officials prevent exhaustion from occurring 28 through misconduct, or fail to respond to a grievance within the policy time limits. See, e.g. Moore 6 1 v. Bennette, 517 F.3d 717, 725 (4th Cir.2008) (“[A]n administrative remedy is not considered to 2 have been available if a prisoner, through no fault of his own, was prevented from availing himself 3 of it.”); Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.2007) (Courts are “obligated 4 to ensure any defects in exhaustion were not procured from the action of inaction of prison 5 officials.”); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.2006) (administrative remedy not available 6 if prison employees do not respond to a properly filed grievance or use affirmative misconduct to 7 prevent a prisoner from exhausting); Boyd v. Corrections Corp. of America, 380 F.3d 989, 996 (6th 8 Cir.2004) (“administrative remedies are exhausted when prison officials fail to timely respond to 9 properly filed grievance”); Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (inability to utilize 10 inmate appeals process due to prison officials’ conduct or the failure of prison officials to timely 11 advance appeal may justify failure to exhaust); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th 12 Cir.2002) (the failure to respond to a grievance within the policy time limits renders remedy 13 unavailable); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002) (when prison officials fail to 14 respond, the remedy becomes unavailable, and exhaustion occurs); Foulk v. Charrier, 262 F.3d 687, 15 698 (8th Cir.2001) (district court did not err when it declined to dismiss claim for failure to exhaust 16 where prison failed to respond to grievance); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.1999) (when 17 a valid grievance has been filed and the state’s time for responding has expired, the remedies are 18 deemed exhausted); see also Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir.2003) (recognizing that 19 a remedy prison officials prevent a prisoner from utilizing is not an available remedy); Brown v. 20 Croak, 312 F.3d 109, 113 (3d Cir.2002) (formal grievance procedure not available where prison 21 officials told prisoner to wait for termination of investigation before filing formal grievance and then 22 never informed prisoner of termination of investigation); Miller v. Norris, 247 F.3d 736, 740 (8th 23 Cir.2001) (a remedy prison officials prevent a prisoner from utilizing is not an available remedy). 24 In determining whether Plaintiff has properly exhausted his administrative remedies, the 25 Court must resolve two separate questions: (1) whether the “request for accommodation,” number 26 CSPC-6-06-02526, was related to the claims raised in this action, and (2) whether request number 27 CSPC-6-06-02526 exhausted Plaintiff’s administrative remedies despite the fact that Plaintiff did 28 not appeal that request to the third level. 7 1 1. CSPC-6-06-02526 Is Related To The Claims Raised In This Action 2 Defendants argue that the resolution of request number CSPC-6-06-02526 is not relevant for 3 the purpose of determining whether Plaintiff exhausted his administrative remedies for the claims 4 pursued in this action. Defendants contend that Plaintiff’s claims are based on Cano and Jones’ 5 actions in denying Plaintiff’s request for accommodation. Defendants argue that in order to exhaust 6 his administrative remedies, Plaintiff must appeal Cano and Jones’ denial of his request. 7 Plaintiff claims that he filed an accommodation request on June 26, 2006 that complained 8 about the heat on the top tier unit where Plaintiff was housed. Plaintiff alleges that the request was 9 “screened out” by Jones and Cano because it was untimely. (Fourth Am. Compl. 4.) Plaintiff 10 alleged that the appeal was “withheld” by Jones and Cano for three weeks and sent back to Plaintiff 11 as untimely. (Fourth Am. Compl. 4.) Plaintiff’s Eighth Amendment claim is based on the fact that 12 the heat on the top tier unit posed an excessive risk to Plaintiff’s health and safety and that Jones and 13 Cano were aware of that risk through the request that Plaintiff filed on June 26, 2006. Thus, Plaintiff 14 alleges that Jones and Cano violated Plaintiff’s Eighth Amendment rights by denying Plaintiff’s June 15 26, 2006 request. 16 Plaintiff’s opposition to Defendants’ motion to dismiss reveals that the request that Plaintiff 17 referred to in his complaint is request number CSPC-6-06-02526--the same request that allegedly 18 exhausted Plaintiff’s administrative remedies. Defendants argue that Plaintiff must file a separate 19 administrative appeal that appeals Jones and Cano’s denial of CSPC-6-06-02526 in order to exhaust 20 the administrative remedies for any claim premised on the denial of his request. In other words, 21 Defendants argue that the processing of CSPC-6-06-02526 cannot serve as both the event giving rise 22 to Plaintiff’s claims as well as the event that exhausted Plaintiff’s administrative remedies for his 23 claims. 24 a. Prison Appeal Requirements 25 Generally, “it is the prison’s requirements, not the PLRA” that defines “[t]he level of detail 26 necessary in a grievance to comply with the grievance procedures.” Jones v. Bock, 549 U.S. 199, 27 218 (2007). The PLRA requires “proper exhaustion,” which entails “compliance with an agency’s 28 deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). Thus, 8 1 the Court must determine whether the prison’s administrative remedy system contains “critical 2 procedural rules” that govern the level of detail required in the grievances filed by prisoners. The 3 Court must also determine whether Plaintiff’s request for accommodation conforms to those “critical 4 procedural rules.” 5 Defendants have not provided much insight as to the existence of any “critical procedure 6 rules” that govern the level of detail required in Plaintiff’s grievances. Defendants note that Cal. 7 Code Regs. tit. 15, § 3084.1(a) provides that “[a]ny inmate or parolee under the department’s 8 jurisdiction may appeal any departmental decision, action, condition, or policy which they can 9 demonstrate as having an adverse effect upon their welfare.” Plaintiff filed a request for 10 accommodation3 asking for a transfer to a lower tier unit because of the heat. Plaintiff’s request 11 appears to satisfy the requirements of Section 3084.1(a) because it appealed a “condition” that had 12 “an adverse effect upon [Plaintiff’s] welfare. The extremely hot conditions that allegedly posed a 13 substantial risk to Plaintiff’s health and safety are a substantial element of Plaintiff’s Eighth 14 Amendment claims against Defendants Jones and Cano. The regulations identified by Defendants 15 only state that Plaintiff must appeal “conditions” that have an adverse effect on his welfare. Plaintiff 16 has filed an appeal concerning the adverse “conditions.” Significantly, Defendants have not 17 identified any regulations that require Plaintiff’s appeal to specifically identify a prison official’s role 18 in creating or ignoring the adverse “conditions.” The Court finds that Plaintiff’s request for 19 accommodation satisfies the requirements set forth in Section 3084.1(a). 20 b. PLRA Appeal Requirements 21 “[W]hen a prison’s grievance procedures are silent or incomplete as to factual specificity, ‘a 22 grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.’” 23 Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (quoting Strong v. David, 297 F.3d 646, 650 24 (7th Cir. 2002)). In Jones, the Supreme Court rejected the argument that the PLRA requires 25 prisoners to “name all defendants” in their administrative grievances. Jones, 549 U.S. at 217-19. 26 27 28 3 Defendants have not argued that Plaintiff’s “request for accommodation” did not constitute an “appeal” for the purposes of exhaustion. Defendants have conceded that Plaintiff’s “request for accommodation” was processed as an administrative appeal. (Reply 2:4-11.) 9 1 The Supreme Court stated that the rule “may promote early notice to those who might later be sued, 2 but that has not been though to be one of the leading purposes of the exhaustion requirement.” Id. 3 at 219. In Griffin, the Ninth Circuit held that “[a] grievance need not include legal terminology or 4 legal theories unless they are in some way needed to provide notice of the harm being grieved.” 5 Griffin, 557 F.3d at 1120. “The primary purpose of a grievance is to alert the prison to a problem 6 and facilitate its resolution, not to lay groundwork for litigation.” Id. The Ninth Circuit found that 7 a prisoner’s “failure to grieve deliberate indifference does not invalidate his exhaustion attempt” with 8 respect to claims raised under the Eighth Amendment.4 9 The Court finds that Plaintiff’s request for accommodation is sufficient under the PLRA’s 10 standards. Plaintiff’s request put prison officials on notice of the harm caused by being housed in 11 the top tier unit where the temperatures were very hot. Plaintiff’s failure to describe Jones and 12 Cano’s failure to remedy the situation by denying or ignoring Plaintiff’s request for accommodation 13 is not fatal to Plaintiff’s claim to exhaustion. Plaintiff’s failure to specifically identify Jones and 14 Cano by name is not fatal to his claim to exhaustion. See Jones, 549 U.S. at 217-19. Plaintiff’s 15 failure to put prison officials on notice of Jones and Cano’s deliberate indifference is also not fatal 16 to his claim to exhaustion. See Griffin, 557 F.3d at 1120. Although Jones and Cano’s deliberate 17 indifference is a necessary element of Plaintiff’s legal claims, it is not a necessary element of 18 Plaintiff’s administrative appeal. Plaintiff need only notify prison officials about the problem and 19 facilitate its resolution, which Plaintiff has done. 20 The Court finds that CSPC-6-06-02526 is sufficiently related to the claims being raised in 21 this action to satisfy the PLRA’s exhaustion requirement. Plaintiff’s claims concern the conditions 22 of Plaintiff’s confinement. Plaintiff contends that the heat was so extreme that it threatened his 23 health and safety. Plaintiff’s request for accommodation put prison officials on notice of the problem 24 and was sufficient to facilitate its resolution. 25 /// 26 27 28 4 An Eighth Amendment claim has two elements: (1) an objective element that the prisoner suffer a “sufficiently serious” deprivation, and (2) a subjective element that the defendant act with “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). 10 1 2. Plaintiff Exhausted All Available Administrative Remedies 2 Defendants argue that even if CSPC-6-06-02526 is related to the claims being raised in this 3 action, Plaintiff’s request was not exhausted because it was withdrawn at the first formal level of 4 review on August 9, 2006. Defendants contend that it must proceed through the third formal level 5 of review to be fully exhausted. Plaintiff argues that Defendants erroneously recorded the request 6 as withdrawn because Plaintiff never withdrew his request. Plaintiff also contends that he received 7 a letter on August 31, 2006 related to his request telling Plaintiff to resubmit a 602 form. The letter 8 stated that the form was due on a date that had already passed by the time Plaintiff received the letter. 9 Plaintiff promptly resubmitted the form, but it was rejected as untimely. 10 In Plaintiff’s declaration in support of his opposition, Plaintiff attaches his request for 11 accommodation as an exhibit. (Decl. of Pl. Justin Lomako in Supp. of Opp’n to Defs.’ Mot. to 12 Dismiss Ex. A.) The request bears the log number “06-2526” and is dated June 26, 2006. (Decl. of 13 Pl. Ex. A at 1.) Plaintiff has also attached a copy of the letter he received on August 31, 2006. 14 (Decl. of Pl. Ex. B.) The letter states that it is in reference to “Log Number: CSPC-6-06-02526” and 15 is signed by “J. Jones.” (Decl. of Pl. Ex. B at 1.) The letter further states that Plaintiff’s appeal was 16 being returned because Plaintiff “need[ed] to complete the next appropriate section.” The letter is 17 dated August 31, 2006, but states that Plaintiff had to submit a response within “15 days from the 18 8/3/06[sic].” 19 Plaintiff’s evidence persuasively contradicts the declaration and documentation provided by 20 Defendants. Defendants rely on a declaration from Jennifer Jones, an appeals coordinator, in support 21 of their motion to dismiss. A printout of the Plaintiff’s appeals record is attached to Ms. Jones’ 22 declaration. (Decl. of Jennifer Jones Ex. A.) The printout contains a reference to CSPC-6-06-02526, 23 indicating that it was received on June 30, 2006 and completed on August 9, 2006. (Decl. of 24 Jennifer Jones Ex. A at 1.) The printout also states under “Disposition” that Plaintiff’s request for 25 accommodation was “WITHDRAWN.” (Decl. of Jennifer Jones Ex. A at 1.) 26 Defendants provide no explanation for the apparent discrepancy presented by the fact that 27 their printout indicates that CSPC-6-06-02526 was withdrawn on August 9, 2006, yet Jones sent 28 Plaintiff a letter on August 31, 2006 informing Plaintiff that Plaintiff’s appeal was not “adequately 11 1 completed” and that Plaintiff had to resubmit it. (Decl. of Pl. Ex. B at 1.) The letter does not 2 conform with Defendants’ contention that Plaintiff’s appeal was withdrawn and completed on 3 August 9, 2006. Plaintiff’s declaration and evidence are fully consistent with the allegations Plaintiff 4 made in his complaint. 5 Based on the inconsistencies in Defendants’ evidence, the Court finds that prison officials 6 did not respond to Plaintiff’s request for accommodation. The Court further finds that the failure 7 to respond to Plaintiff’s request constitutes affirmative conduct by prison officials in obstructing 8 Plaintiff’s ability to exhaust his administrative remedies. Because prison officials effectively 9 prevented Plaintiff from pursuing his administrative remedies, there were no remedies “available” 10 to Plaintiff and Plaintiff has satisfied the PLRA’s exhaustion requirement. Plaintiff took reasonable 11 and appropriate steps to exhaust his administrative remedies but was precluded from exhausting 12 through no fault of his own, but because prison officials failed to respond to his request. The Court 13 finds that Plaintiff’s failure to appeal to the third level of review is excused. 14 III. Conclusion and Recommendation 15 The Court finds that Plaintiff exhausted all available remedies related to the claims raised 16 in this action. Plaintiff’s request for accommodation, CSPC-6-06-02526, addressed the conditions 17 being challenged in his Eighth Amendment claims. Administrative remedies were not “available” 18 to Plaintiff because prison officials failed to respond to Plaintiff’s request. Therefore, Plaintiff 19 exhausted all “available” administrative remedies as required by the PLRA. 20 Accordingly, it is HEREBY RECOMMENDED that: 21 1. 22 Plaintiff’s motion requesting the Court to treat his opposition as timely filed be GRANTED; and 23 2. Defendants’ motion to dismiss, filed on October 6, 2009, be DENIED. 24 These Findings and Recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 26 days after being served with these Findings and Recommendations, any party may file written 27 objections with the Court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 1 shall be served and filed within ten (10) days after service of the objections. The parties are advised 2 that failure to file objections within the specified time may waive the right to appeal the District 3 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 5 IT IS SO ORDERED. 6 Dated: ie14hj July 6, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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