(PC) Powell v. Smith et al, No. 1:2008cv01443 - Document 38 (E.D. Cal. 2010)
Court Description: ORDER GRANTING Defendants' Smith and McFadden 25 Motion to Dismiss; ORDER DISMISSING Plaintiff's 18 Third Amended Complaint, Without Prejudice signed by Senior Judge Stephen M. McNamee on 2/8/2010. CASE CLOSED. (Sant Agata, S)
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(PC) Powell v. Smith et al Doc. 38 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 TONY EDWARD POWELL, Plaintiff, 10 11 vs. 12 WARREN D. SMITH, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. 1:08-cv-01443-SMM ORDER 15 16 Pending before the Court is Defendants’ Dennis Smith and Robert McFadden 17 (collectively, “Defendants”) Motion to Dismiss (Dkt. 25). Defendants allege that Plaintiff 18 failed to exhaust the prison’s grievance procedure under 42 U.S.C. § 1997(e)(a) before 19 commencement of this lawsuit and seek dismissal pursuant to an “unenumerated” Rule 12(b) 20 motion for failure to exhaust administrative remedies. 21 22 BACKGROUND 23 Plaintiff, Tony Edward Powell (hereafter, “Plaintiff”), is currently an inmate at the 24 United States Penitentiary in Atwater, California, and in the custody of the Bureau of Prisons 25 (“BOP”). Plaintiff filed his first complaint on September 25, 2008 against Warden Dennis 26 Smith and Regional Director Robert McFadden asserting violation of his Eighth Amendment 27 rights when he, and other inmates, were subjected to a 60-day lockdown in Atwater, 28 California. (Dkt. 1, Pl.’s Compl.¶ 2.) During this lockdown, Plaintiff claims he was subject Dockets.Justia.com 1 to inhumane conditions, including cells with broken plumbing and denial of hygienic 2 products. (Id.) 3 Plaintiff filed his First Amended Complaint on January 6, 2009 (Dkt. 9), a Second 4 Amended Complaint on January 22, 2009 (Dkt. 12), and a Third Amended Complaint on 5 March 23, 2009. (Dkt. 18.) On June 25, 2009, the Court screened Plaintiff’s Third Amended 6 Complaint, finding that only Counts I and II consisting of the Eighth Amendment conditions 7 of confinement claims against Defendants Smith and McFadden could proceed. (Dkt. 21 at 8 5.) Plaintiff demands $150,000.00 in damages from Defendants. (See Third Amended 9 Complaint, Dkt. 18 at 6-10.) 10 11 12 13 14 15 16 On November 2, 2009, Defendants Smith and McFadden filed a Motion to Dismiss claiming that Plaintiff failed to complete the BOP’s prisoner grievance procedures before filing this lawsuit. Furthermore, Defendants dispute Plaintiff’s allegation that he handed off his BP-9 grievance form to Correctional Counselor, Stewart Lyons, because Lyons was not working at the time Plaintiff claims he filed the form. (Dkt. 31, Lyons Dec. ¶ 2.) On November 19, 2009, Plaintiff filed his response to Defendants’ motion to dismiss, upon which Defendants filed a reply on December 2, 2009. 17 18 STANDARD OF REVIEW 19 “The failure to exhaust nonjudicial remedies that are not jurisdictional should be 20 treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion 21 rather than a motion for summary judgment” because “dismissal of an action on the ground 22 of failure to exhaust administrative remedies is not on the merits.” Wyatt v. Terhune, 315 23 F.3d 1108, 1119 (9th Cir. 2003) (finding that the PLRA administrative exhaustion 24 requirement creates a defense to be raised by defendants and that the documents submitted 25 by state corrections department were insufficient to show inmate’s nonexhaustion of the 26 administrative remedies). The Prisoner Litigation Reform Act of 1995 (“PLRA”) exhaustion 27 requirement creates an affirmative defense that must be raised by the defendant, who has the 28 -2- 1 ultimate burden of proof to show nonjudicial remedies exist that claimant did not use. See 2 Jones v. Bock, 549 U.S. 199, 216 (2007); Wyatt, 315 F.3d at 1117-1118. 3 In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, courts 4 may look to outside factual evidence beyond the pleadings, such as affidavits and supporting 5 materials. Wyatt, 315 F.3d. at 1120. Defendants meet their burden of establishing Plaintiff’s 6 nonexhaustion of administrative remedies by showing a complete record of the prison’s 7 appeal process and documentation that the prisoner did not complete the process. Id. If the 8 court finds that the plaintiff has failed to exhaust, “the proper remedy is dismissal of the 9 claim without prejudice.” Id. 10 DISCUSSION 11 12 I. Plaintiff’s Exhaustion Requirement under PLRA [42 U.S.C. §1997 (e)(a)] 13 Under the PLRA, a prisoner is required to “exhaust” the prison’s “available” 14 grievance procedure before bringing suit to federal court. 42 U.S.C. §1997 (e)(a). Prisoners 15 must exhaust all remedies that exist within the facility, not just those that meet federal 16 standards, before filing an initial compliant with the court challenging prison conditions. 17 Woodford v. Ngo, 548 U.S. 81, 85 (2006); Vaden v. Summerhill, 449 F.3d 1047, 1050 18 (2006); McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002). Defendants’ Motion 19 to Dismiss argues that Plaintiff did not submit his initial Form BP-9 to Stewart Lyons as 20 claimed because Lyons was not working in Plaintiff’s unit at that time, and Plaintiff’s BP-10 21 form does not mention a BP-9 having been filed. Furthermore, Defendants argue for 22 dismissal because Plaintiff failed to complete all prison appeal processes before bringing suit 23 in federal court. 24 A. “Proper” Exhaustion 25 Exhaustion must be “proper,” meaning a grievant must correctly use all steps the 26 agency sets forth to allow the prison a chance to reach the merits of the issue in an effective 27 manner. Woodford, 548 U.S. at 90-93 (holding that a prisoner failed to exhaust his 28 -3- 1 administrative remedies under PLRA because he did not complete the administrative review 2 process in accordance with the applicable procedural rules, including deadlines, as a 3 precondition to bringing suit in federal court). A prisoner must file timely and otherwise 4 procedurally non-defective administrative grievances or appeals to constitute “proper” 5 exhaustion. Id. at 83. Prisoners need comply only with the prison’s own grievance 6 procedures to properly exhaust under the PLRA. Jones, 549 U.S. at 218 (holding that 7 exhaustion is mandatory for prisoners bringing suit under PLRA, but that the prisoners are 8 not required to specially plead or demonstrate exhaustion in their complaints). 9 Here, Defendants must show that Plaintiff failed to properly exhaust all administrative 10 relief by not following procedural steps, not meeting deadlines set by the grievance policy, 11 or not completing all steps in the process. Woodford, 548 U.S. at 88. However, Defendants 12 and Plaintiff are in direct dispute regarding the facts surrounding Plaintiff’s execution of 13 grievances. 14 15 1. Defendant’s Burden of Proof regarding Plaintiff’s Failure to Follow Grievance Protocol 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants argue their records do not indicate Plaintiff filed a Form BP-9 regarding the condition of his confinement, and therefore, Plaintiff has not adequately followed grievance procedure. BOP’s Administrative Remedy Program requires that an inmate first present his complaint to the institution staff (Form BP-9), followed by a complaint to the Regional Director (BP-10) if dissatisfied with the response to the BP-9. (Dkt. 25, Burke Decl. ¶ 2.) The final appeal step (BP-11) is with the General Counsel in the Central Office of BOP, upon which the inmate is then deemed to have exhausted all his administrative remedies. (Id.) Defendants state their electronic records show Plaintiff prematurely filed a BP-10 regarding his conditions of confinement complaint on August 20, 2008 because there is no record Plaintiff filed a BP-9 prior. (Dkt. 31, Supp. Decl. ¶2.) Defendants state a direct BP-10 is accepted only if it involves a “sensitive issue,” which they did not find in Plaintiff’s case, or if it is an appeal of a BP-9. Therefore, Defendants claim Plaintiff failed in not filing -4- 1 an initial Form BP-9. (Dkt. 25, Burke Decl. ¶ 6.) Furthermore, Defendants assert their 2 records show Plaintiff filed his BP-11 complaint regarding the conditions of confinement on 3 October 3, 2008 without correctly filing a Form BP-9 or Form BP-10. (Dkt. 25, Burke Decl. 4 ¶ 6.) 5 Plaintiff claims that he submitted, on an undisclosed date, his BP-9 form to Correction 6 Counselor, Steven Lyons, before his submission of Form BP-10. (Dkt. 29, Aff. Powell at 2.) 7 A Warden has 20 days to respond to a BP-9, and once time has passed, the inmate may treat 8 an absence of response as a denial and proceed to the next level of the administrative remedy 9 process. 28 C.F.R. § 542.181. Plaintiff asserts the Warden’s non-response after 20 days was 10 his basis for appeal to the Regional Director on Form BP-10. (Dkt. 29, Aff. Powell at 2.) 11 Plaintiff claims that his BP-10 form contains no reference, allegation or indication that a BP- 12 9 was filed because the Warden had not responded to the complaint. (Id.) 13 14 15 16 17 Defendants claim that Plaintiff is incorrect regarding his submission of Form BP-9 to Stewart Lyons because Lyons was not working in Plaintiff’s unit from June 20, 2008 to September 1, 2008. (Dkt. 31. Lyon Decl. ¶ 3.) Plaintiff alleges the inhumane conditions occurred on June 20, 2008; therefore, his BP-9 should have been filed after June 20, 2008 and before August 20, 2008 (the time he filed Form BP-10). 18 19 20 21 22 23 24 The documents produced by Defendants, including an affidavit by Correction Counselor Stewart Lyons and Correctional Programs Secretary Cecilia Burks, are inadequate to establish that Plaintiff failed to exhaust BOP’s grievance process. Although the affidavits clearly lay out the administrative review process and explicitly state that Plaintiff did not exhaust all his remedies, further factual development of the record is required to prove whether officers failed to follow protocol pursuant to 28 C.F.R. § 542.18 by responding to 25 26 27 28 1 28 C.F.R. § 542.18 provides in part: “Once filed, response shall be made by the Warden . . . within 20 calendar days . . . if the inmate does not receive a response within the time allotted for reply . . . inmate may consider the absence of a response to be a denial at that level.” -5- 1 Plaintiff’s BP-9 within 20 days. In his supplemental affidavit, Plaintiff avows that he did 2 submit a Form BP-9, which did not receive any response. 3 Defendants offer proof that Plaintiff failed to exhaust the prison’s grievance process; 4 however, the factual materials provided are in direct conflict with the factual materials 5 provided by Plaintiff. Because evidence is viewed in the light most favorable to the non- 6 moving party, the Court cannot grant the motion to dismiss on this ground. 7 B. “Complete” Exhaustion 8 9 10 11 12 13 14 15 16 17 18 19 20 PLRA’s exhaustion provision requires a prisoner to complete all administrative remedies before submitting documents to a federal court. Vaden, 449 F.3d at 1050 (holding that a California state prisoner who sent his complaint into district court while his administrative remedies within the prison system were pending did not exhaust all nonjudicial remedies). A case is deemed exhausted by statute only upon completion of all prison grievances. Where a prison inmate brings an action seeking redress for prison conditions, without exhausting his or her administrative remedies, the action must be dismissed. McKinney, 311 F.3d at 1201 (upholding Congress’ intent to reduce the quantity of prisoner suits and dismiss frivolous claims by requiring dismissal without prejudice when there is no pre-suit exhaustion). Furthermore, a prisoner’s concession to nonexhaustion is a valid ground for dismissal. Wyatt, 315 F.3d at 1120. 1. Plaintiff Failed to Complete Grievance Protocol before Filing Suit 21 Defendants argue for dismissal because Plaintiff failed to complete the grievance 22 process before bringing suit in federal court. In this case, the inmate must complete all 23 appeal processes, from Form BP-9 through Form BP-11, before redress can be sought in 24 federal court. (Dkt. 25, Burke Decl. ¶ 3.) Notwithstanding the fact that Plaintiff may have 25 filed his BP-9 complaint in a correct and timely manner, Plaintiff concedes that he failed to 26 properly exhaust BOP’s appeal process regarding the allegedly inhumane treatment during 27 28 -6- 1 lockdown, before filing his complaint with the district court on September 25, 2008. (See 2 Third Amended Complaint, Dkt. 18 at 9, ¶ 5.) 3 Plaintiff does not dispute he submitted his BP-11 on October 3, 2008, which is after 4 he initiated this suit.2 5 administrative process ended and upon which his grievances remain unredressed. The Court 6 should uphold the Congressional intent behind PLRA by recognizing that the grievance 7 process must be completed before filing suit. See Wyatt, 548 U.S. at 88-92. Because 8 Plaintiff failed to complete BOP’s grievance process by filing his BP-11 after filing suit, 9 Plaintiff’s complaint must be dismissed without prejudice. Plaintiff should have initiated this litigation only after the 10 CONCLUSION 11 After construing all allegations of material fact in the Complaint in the light most 12 13 14 15 16 17 18 favorable to Plaintiff, the Court finds that Plaintiff has presented factual allegations that are in direct conflict with Defendants’ factual allegations regarding the Form BP-9; therefore, dismissal cannot be granted on that ground. However, because Plaintiff failed to exhaust all administrative remedies by submitting a Form BP-11 before filing suit on September 25, 2008, his complaint must be dismissed because pre-suit exhaustion is an indispensable requirement. 19 Accordingly, 20 IT IS HEREBY ORDERED that Defendants’ Smith and McFadden Motion to 21 Dismiss (Dkt. 25) is GRANTED. 22 /// 23 /// 24 25 /// 26 2 27 28 Defendants failed to attach Plaintiff’s Form BP-11 to their motion to dismiss or reply; however, Plaintiff attached a copy of the BP-11 in his Second Amended Complaint, Exhibit B. (Dkt. 12 at 14-18.) -7- 1 2 3 IT IS FURTHER ORDERED that Plaintiff’s Third Amended Complaint is dismissed without prejudice. DATED this 8th day of February, 2010. 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 -8-
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