(PC) Finley v. Gonzalez et al, No. 1:2008cv00075 - Document 71 (E.D. Cal. 2010)
Court Description: ORDER Disregarding Plaintiff's 69 70 Motions; FINDINGS and RECOMMENDATIONS recommending that Defendants' 60 Motion to Dismiss be Granted and Action be Dismissed without Prejudice signed by Magistrate Judge Dennis L. Beck on 04/19/2010. Referred to Judge O'Neill; Objections to F&R due by 5/24/2010. (Flores, E)
Download PDF
<![CDATA[
(PC) Finley v. Gonzalez et al Doc. 71 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 JOWELL FINLEY, CASE NO. 1:08-cv-00075-LJO-DLB PC 7 Plaintiff, ORDER DISREGARDING PLAINTIFF’S MOTIONS 8 v. 9 (Docs. 69, 70) T. GONZALEZ, et al., 10 12 FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS’ MOTION TO DISMISS BE GRANTED AND ACTION BE DISMISSED WITHOUT PREJUDICE 13 (Doc. 60) Defendants. 11 14 / OBJECTIONS DUE WITHIN 30 DAYS 15 16 Findings and Recommendations 17 I. Background 18 Plaintiff Jowell Finley (“Plaintiff”) is a prisoner in the custody of the California 19 Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on 21 Plaintiff’s complaint, filed January 15, 2008, against Defendants Pina and Olive for violation of 22 the Eighth Amendment. On October 29, 2009, Defendants’ filed a motion to dismiss for failure 23 to exhaust administrative remedies, pursuant to the unenumerated portion of 12(b) of the Federal 24 Rules of Civil Procedure,. (Doc. 60.) On November 19, 2009, Plaintiff filed his opposition. 25 (Doc. 62.) On December 2, 2009, Defendants filed their reply. (Doc. 63.) The matter is 26 submitted pursuant to Local Rule 230(l). 27 On February 22, 2010, and April 5, 2010, Plaintiff filed motions seeking a ruling on 28 Defendants’ motion to dismiss. Because the Court issues the following Findings and 1 Dockets.Justia.com 1 Recommendations addressing Defendants’ motion, Plaintiff’s motions are HEREBY 2 DISREGARDED. 3 II. Summary of Complaint 4 Plaintiff contends that on November 12, 2007, Plaintiff was assaulted by his cellmate, 5 inmate Galbart. Plaintiff contends that Defendant Olive was wanred on October 24, 2007 and 6 October 29, 2007 that he intended to hurt Plaintiff, but that defendant Olive did not do anything. 7 Plaintiff alleges that Defendant Pina was repeatedly informed of the threats made against 8 Plaintiff on the day of the assault, but Defendant Pina ignored the threats. Plaintiff alleges a 9 violation of the Eighth Amendment.1 10 III. Failure to Exhaust Administrative Remedies 11 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 12 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 13 confined in any jail, prison, or other correctional facility until such administrative remedies as are 14 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 15 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S. Ct. 910, 16 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). 17 Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief 18 offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the 19 exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 20 U.S. 516, 532, 122 S. Ct. 983 (2002). 21 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 22 defense under which Defendants have the burden of raising and proving the absence of 23 exhaustion. Jones, 127 S. Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 24 The failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to 25 an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d 26 at 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th 27 1 28 The Court dismissed all of Plaintiff’s other claims for failure to state a claim upon which relief may be granted. (Doc. 21, Findings and Recommendations; Doc. 27, Order Adopting Findings and Recommendations.) 2 1 Cir. 1998) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative 2 remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 3 315 F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative 4 remedies, the proper remedy is dismissal without prejudice. Id. 5 IV. Discussion 6 The California Department of Corrections and Rehabilitation (“CDCR”) has an 7 administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 8 (2009). The process is initiated by submitting a CDC Form 602. Id. § 3084.2(a). Four levels of 9 appeal are involved, including the informal level, first formal level, second formal level, and 10 third formal level, also known as the “Director’s Level.” Id. § 3084.5. Appeals must be 11 submitted within fifteen working days of the event being appealed, and the process is initiated by 12 submission of the appeal to the informal level, or in some circumstances, the first formal level. 13 Id. §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are 14 required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 15 U.S. 81, 85-86, 126 S. Ct. 2378 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not 16 always require pursuit of an appeal through the Director’s Level of review. What is required to 17 satisfy exhaustion is a fact specific inquiry, and may be dependent upon prison officials’ response 18 to the appeal. See Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005). 19 Defendants contend that Plaintiff did not exhaust his administrative remedies prior to the 20 filing of this action. Defendants contend that Plaintiff did file an administrative remedy 21 regarding Defendants’ alleged failure to protect. (Doc. 60, Mot. To Dismiss 5:12-14.) However 22 the Director’s level decision was issued April 16, 2008, four months after Plaintiff initiated this 23 action. (Id.) Defendants submit as evidence a declaration from N. Grannis, Chief of the Inmate 24 Appeals Branch for the CDCR, and the Director’s level decision regarding Grievance No. Cor25 07-05302, dated April 16, 2008. (N. Grannis Decl.; Exh. 1.) Grannis declares that no other 26 grievances concerning this incident were filed. (Grannis Decl. ¶ 6.) 27 Defendants have met their burden of demonstrating that Plaintiff failed to exhaust 28 administrative remedies. The burden shifts to Plaintiff to demonstrate compliance. 3 1 In opposition, Plaintiff attests that he exhausted his administrative remedies. (Doc. 62, 2 Opp’n ¶ 4.) Plaintiff attests that he filed a civil rights complaint in January 2008. (Id. ¶ 5.) 3 Plaintiff attests that prior to determining the merits of the case, and before Defendants were 4 served with summons and complaint, Plaintiff had exhausted his administrative remedies. (Id.) 5 Plaintiff has failed to demonstrate that he exhausted his administrative remedies in 6 compliance with the PLRA. As previously stated, prisoners are required to exhaust the available 7 administrative remedies prior to filing suit. McKinney, 311 F.3d at 1199-1201. “[A]n action is 8 ‘brought’ for purposes of § 1997e(a) when the complaint is tendered to the district clerk . . . .” 9 Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006) (quoting Ford v. Johnson, 362 F.3d 10 395, 400 (7th Cir. 2004)). Plaintiff brought this action on January 15, 2008. (Doc. 1.) Plaintiff 11 exhausted his administrative remedies on April 15, 2008. Thus, Plaintiff did not exhaust his 12 administrative remedies prior to filing suit, and did not comply with § 1997e(a). 13 V. Conclusion and Recommendation 14 Based on the foregoing, it is HEREBY RECOMMENDED that: 15 1) 16 Defendants’ motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, filed October 29, 2009, should be GRANTED; and 17 2) 18 This action be DISMISSED, without prejudice, for Plaintiff’s failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). 19 These Findings and Recommendations will be submitted to the United States District 20 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 21 thirty (30) days after being served with these Findings and Recommendations, the parties may 22 file written objections with the Court. The document should be captioned “Objections to 23 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 24 objections within the specified time may waive the right to appeal the District Court’s order. 25 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 IT IS SO ORDERED. 27 Dated: 3b142a April 19, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 28 4
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
