(PC) Burton v. Clark et al, No. 1:2009cv00061 - Document 33 (E.D. Cal. 2011)
Court Description: ORDER GRANTING Defendant's 27 and 29 Motion to STRIKE Plaintiff's Surreply; ORDER DENYING 24 Defendant's Motion to Dismiss for Plaintiff's Failure to Exhaust Administrative Remedies, signed by Magistrate Judge Dennis L. Beck on 02/22/2011. (Answer due 03/21/2011) (Martin, S)
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(PC) Burton v. Clark et al Doc. 33 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ERIC WILTON BURTON, CASE NO. 1:09-CV-00061-DLB PC 9 ORDER GRANTING DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S SURREPLY (DOCS. 27, 29) Plaintiff, 10 v. 11 KEN CLARK, et al., 12 ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR PLAINTIFF’S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (DOC. 24) Defendants. 13 / 14 15 Order 16 I. Background 17 Plaintiff Eric Wilton Burton (“Plaintiff”) is a prisoner in the custody of the California 18 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 1, 2009, Plaintiff 20 filed his first amended complaint (“FAC”) against Defendant Ken Clark for violation of the Free 21 Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized 22 Persons Act of 2000. Doc. 7, FAC.; Doc. 11, Order Dismissing Certain Claims and Defs. 23 Pending before the Court is Defendant Ken Clark’s motion to dismiss for Plaintiff’s 24 failure to exhaust administrative remedies, filed April 8, 2010, Doc. 24, and Defendant’s motion 25 to strike Plaintiff’s surreply. Plaintiff filed his opposition to Defendant’s motion to dismiss on 26 April 19, 2010, 1 Doc. 25, and his objections to Defendant’s motion to strike on May 24, 2010, 27 1 28 Plaintiff was provided with the requirements for opposing an unenumerated 12(b) motion in the Court’s second informational order, issued November 2, 2009. Wyatt v. Terhune, 315 F.3d 1108, 1114 (9th Cir. 2003). 1 Dockets.Justia.com 1 Doc. 30. Defendant Clark filed his reply to Plaintiff’s opposition on April 26, 2010. Doc. 26. 2 The matter is submitted pursuant to Local Rule 230(l). 3 II. Motion To Strike Surreply 4 On May 7, 2010, Plaintiff filed a motion entitled “cross-motion for summary judgment.” 5 Doc. 27. The Court construes this motion as a surreply as it actually addresses Defendant’s reply 6 to Plaintiff’s opposition. On May 13, 2010, Defendant filed a motion to strike the surreply. Doc. 7 29. Plaintiff filed objections to Defendant’s motion on May 24, 2010. Doc. 30. 8 The Local Rules of this Court and the Federal Rules of Civil Procedure do not generally 9 permit the filing of a surreply. See L.R. 230(l). The Court did not request a surreply from 10 Plaintiff. Accordingly, Defendant’s motion to strike, filed May 13, 2010, is granted. Plaintiff’s 11 motion for cross summary judgment, construed as a surreply, is stricken. 12 III. Summary Of First Amended Complaint 13 Plaintiff alleges that he is an African American Jewish convert. Plaintiff alleges that on 14 or around October 10, 2008, he was taken off the previously approved kosher diet meal plan and 15 placed on the religious vegetarian meal plan. Plaintiff alleges that Defendant Ken Clark created a 16 discriminatory policy against non-traditional African American inmates like Plaintiff, thus 17 impeding Plaintiff’s religious practice. 18 IV. Failure To Exhaust Administrative Remedies 19 A. 20 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with Legal Standard 21 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 22 confined in any jail, prison, or other correctional facility until such administrative remedies as are 23 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 24 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney 25 v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the 26 relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 27 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to 28 prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 2 1 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 2 defense under which defendants have the burden of raising and proving the absence of 3 exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The 4 failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an 5 unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 6 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th 7 Cir. 1998) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative 8 remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Id. at 9 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, 10 the proper remedy is dismissal without prejudice. Id. 11 B. 12 The California Department of Corrections and Rehabilitation has an administrative Analysis 13 grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). The process 14 is initiated by submitting a CDC Form 602. Id. § 3084.2(a). Four levels of appeal are involved, 15 including the informal level, first formal level, second formal level, and third formal level, also 16 known as the “Director’s Level.” Id. § 3084.5. Appeals must be submitted within fifteen 17 working days of the event being appealed, and the process is initiated by submission of the 18 appeal to the informal level, or in some circumstances, the first formal level. Id. §§ 3084.5, 19 3084.6(c). In order to satisfy § 1997e(a), California state prisoners are required to use this 20 process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); 21 McKinney, 311 F.3d at 1199-1201. Exhaustion does not always require pursuit of an appeal 22 through the Director’s Level of review. What is required to satisfy exhaustion is a fact specific 23 inquiry, and may be dependent upon prison officials’ response to the appeal. See Nunez v. 24 Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of exceptions to exhaustion 25 requirement from other circuits); Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005) 26 (“[E]ntirely pointless exhaustion” not required). 27 Defendant Clark contends that Plaintiff submitted only two inmate grievances concerning 28 a religious diet, SATF-C-08-5154 and SATF-C-08-5421. Def.’s Mem. P. & A. Mot. Dismiss 3 1 6:12-16. Of these two grievances, Defendant contends that SATF-C-08-5154 was not properly 2 exhausted, and SATF-C-08-5421 is unrelated to the claims in this action. Id. 6:21-7:11. 3 Defendant relies upon declarations from Chief of Inmate Appeals D. Foston and appeals 4 coordinator R. Gomez. Def.’s Mot. Dismiss, D. Foston Decl.; R. Gomez Decl. 5 Grievance No. SATF-C-08-5154 concerned the removal of Plaintiff from the religious 6 kosher diet. Def.’s Mot. Dismiss, R. Gomez Decl., Ex. B. Plaintiff filed the appeal on October 7 6, 2008, complaining of the denial of the kosher diet and denial of access to Jewish publications. 8 On November 10, 2008, chaplain J. Sharon responded to the grievance by granting Plaintiff 9 access to Jewish publications, but denying as to the kosher diet. Plaintiff grieved this to the 10 second level of review. Plaintiff’s grievance was denied at the second level on January 9, 2009. 11 There is no record that Plaintiff grieved this further. 12 Defendants contend that Grievance No. SATF-C-08-5421 concerned Plaintiff’s request to 13 have a fish option instead of beans for his religious vegetarian diet. This grievance was granted 14 in part at the informal level of review. Plaintiff’s grievance describes the following problem: 15 16 17 Jewish on religious vegetarian diet was sent pork and not religious [indecipherable] diet today. I am religiously forbidden to eat pork. Again for dinner I was given the wrong tray for McCarthy -T92224 C1-113; my food has to be blessed by a Jewish rabbi. I was hoping to get fish today for dinner. The floor officers are too busy to address this single problem. It’s the kitchens ultimate responsibility. 18 19 Def.’s Mot. Dismiss, R. Gomez Decl., Ex. C. Plaintiff requested the following action: “Fix the 20 problem. Please put a big sticker on my tray “Religious Diet” with my name on it. I’ve been 21 getting beans 6 days straight for dinner. Seal it!” Id. 22 The Court agrees with Defendant that Plaintiff failed to exhaust administrative remedies 23 as to SATF-C-08-5154. However, Grievance No. SATF-C-08-5421 concerned more issues than 24 Defendant contends. Plaintiff not only requested a fish option for his meal, but he also requested 25 that his food be blessed by a Jewish rabbi. Though the grievance was granted only as to the fish 26 option for his vegetarian diet, Plaintiff had put prison officials on notice of his request for his 27 food to be blessed by a rabbi, which is directly related to the underlying claim in this action. See 28 Griffin v. Arpaio, 557 F.3d 1117, 1120, (9th Cir. 2009) (“[W]hen a prison’s grievance procedures 4 1 are silent or incomplete as to factual specificity, ‘a grievance suffices if it alerts the prison to the 2 nature of the wrong for which redress is sought.’”) (quoting Strong v. David, 297 F.3d 646, 650 3 (7th Cir. 2002)). 4 Based on prison officials’ informal response to Plaintiff’s claim, they were aware of 5 Plaintiff’s issues regarding his religious diet. The informal response included, “Just to make 6 clear to you that you are not on the Jewish Kosher program anymore. . . . The Rabbi does not 7 bless the vegetarian tray.” Def.’s Mot. Dismiss, R. Gomez Decl., Ex. C. The informal response 8 indicated that Plaintiff’s grievance was only partially granted. Thus, prison officials were aware 9 of Plaintiff’s entire grievance regarding this matter. Prison officials then granted his appeal at the 10 first level of review, and did not discuss his request for a rabbi to bless the food. 11 It is unclear whether Plaintiff submitted grievance No. SATF-C-08-5421 for second level 12 review.2 However, that is immaterial, as Defendant concedes that grievance No. SATF-C-0813 5421 was granted and thus exhausted. Once a prisoner has been reliably informed by an 14 administrator that no further remedies are available, a prisoner is not required to exhaust further 15 levels of review. Brown, 422 F.3d at 935. A granted grievance would not appear to provide 16 Plaintiff any further relief if appealed to the next level of review. See Cal. Code Regs. tit. 15, § 17 3084.5(c) (describing second level review as “for review of appeals denied at first level or for 18 which first level is otherwise waived by these regulations”) (emphasis added). Because 19 grievance No. SATF-C-08-5421 was apparently treated as granted at the first level of review, 20 second level review would seem to not provide any further relief. 21 Defendant has not met his burden regarding exhaustion of administrative remedies in this 22 matter. Plaintiff sufficiently put prison officials on notice of his problems regarding his food not 23 being blessed by a rabbi pursuant to his religious beliefs. Defendant has not shown that further 24 administrative remedy was available to Plaintiff regarding grievance No. SATF-C-08-5421. 25 26 27 28 2 Plaintiff in opposition referred to the exhibits attached to his FAC, which includes grievance No. SATFC-08-5421. Doc. 7, Pl.’s Am. Compl. On November 28, 2008, Plaintiff appears to have appealed this issue to the second level of review, where it was apparently check-marked granted on November 28, 2008. Plaintiff then appealed to the Director’s level on December 3, 2008. The Director’s level then returned Plaintiff’s appeal, finding that Plaintiff had not appealed to the second level of review. 5 1 Thus, Defendant’s motion is denied. 2 V. Conclusion And Order 3 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 4 1. 5 Defendant’s motion to strike Plaintiff’s surreply, filed May 13, 2010, is GRANTED; 6 2. Plaintiff’s motion, filed May 7, 2010, and construed as a surreply, is STRICKEN; 7 3. Defendant’s motion to dismiss, filed April 8, 2010, is DENIED; and 8 4. Defendant Clark is to file an answer to Plaintiff’s first amended complaint within 9 10 11 twenty (20) days from the date of service of this order. IT IS SO ORDERED. Dated: 3b142a February 22, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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