(PC) Levingston v. CDC et al, No. 1:2009cv00589 - Document 30 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS Recommending That This Action be Dismissed re 23 ; Objections due Within 30 Days signed by Magistrate Judge Sheila K. Oberto on 6/20/2010. It is HEREBY RECOMMENDED that Defendants motion to dismiss, filed on March 4, 2010, be GRANTED. Referred to Judge Anthony W. Ishii. Objections to F&R due by 7/26/2010. (Bradley, A)

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(PC) Levingston v. CDC et al Doc. 30 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TONI D. LEVINGSTON, 10 Plaintiff, 11 12 13 CASE NO. 1:09-cv-00589-AWI-SKO PC FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION BE DISMISSED v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 14 (Doc. 23) OBJECTIONS DUE WITHIN 30 DAYS Defendants. / 15 16 Plaintiff Toni D. Levingston (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 4, 2010, Defendants 18 Chavez and Rippee (“Defendants”) filed a motion to dismiss. (Doc. #23.) Defendants argue that 19 they are entitled to dismissal of this action on the ground that Plaintiff failed to exhaust his 20 administrative remedies prior to filing suit. Plaintiff has not filed an opposition to Defendants’ 21 motion to dismiss. 22 I. Background 23 This action proceeds on Plaintiff’s first amended complaint, filed on August 7, 2009. (Doc. 24 #15.) Plaintiff claims that Defendants Chavez and Rippee violated Plaintiff’s rights under the Eighth 25 Amendment when they used excessive force against Plaintiff. 26 Defendants filed a motion to dismiss on March 4, 2010. (Doc. #23.) Defendants move for 27 dismissal on the ground that Plaintiff failed to exhaust his administrative remedies prior to filing suit, 28 as required by the Prison Litigation Reform Act (“PLRA”). 1 Dockets.Justia.com 1 Defendants argue that the inmate appeal system at the prison where Plaintiff was housed 2 (Deuel Vocational Institution, or “DVI”) consists of an informal level of review followed by three 3 formal levels of review. (Defs. Chavez and Rippee’s Mem. of P. & A. in Supp. of their Mot. to 4 Dismiss 2:9-10.) Defendants contend that Plaintiff submitted appeals on two separate occasions 5 regarding the incidents described in his complaint. (P. & A. in Supp. of Mot. to Dismiss 3:1-2.) 6 Defendants argue that both appeals, submitted on September 5, 2008 and September 25, 2008, were 7 rejected as untimely. (P. & A. in Supp. of Mot. to Dismiss 3:2-5.) Defendants argue that DVI’s 8 inmate appeal system requires appeals to be submitted within 15 days of the event or decision that 9 is the subject of the appeal. (P. & A. in Supp. of Mot. to Dismiss 2:13-15.) The incident described 10 in Plaintiff’s complaint allegedly took place on June 18, 2008. (First Am. Compl. 3.) 11 Plaintiff has not filed an opposition to Defendants’ motion to dismiss. On April 21, 2010, 12 Defendants’ counsel filed a declaration noting that Plaintiff has not filed an opposition. (Doc. #26.) 13 On April 27, 2010, the Court ordered Plaintiff to file an opposition or statement of non-opposition 14 to Defendant’s motion to dismiss. (Doc. #27.) Plaintiff was specifically warned that “failure to file 15 an opposition or statement of non-opposition in compliance with [the] order may result in this action 16 being dismissed for failure to obey a court order and failure to prosecute.” (Order Requiring Pl. to 17 File, Within 30 Days, Opp’n or Statement of Non-Opp’n to Def.’s Mot. to Dismiss 1:22-24.) On 18 June 7, 2010, Defendants’ counsel filed a second declaration noting Plaintiff’s failure to file an 19 opposition. (Doc. #28.) 20 II. Discussion 21 “No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or 22 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 23 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The section 24 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 25 435 U.S. 516, 532 (2002). The PLRA exhaustion requirement requires proper exhaustion. 26 Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion demands compliance with an 27 agency’s deadlines and other critical procedural rules. . . .” Id. at 90-91. The proper exhaustion 28 requirement serves two important purposes: 1) it gives an agency the opportunity to correct its own 2 1 mistakes before it is brought into federal court and it discourages disregard of the agency’s 2 procedures; and 2) it promotes efficiency because claims can be resolved much more quickly and 3 economically in proceedings before an agency than in litigation in federal court. Id. at 89. 4 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 5 defense which Defendants have the burden of raising and proving. Wyatt v. Terhune, 315 F.3d 6 1108, 1119 (9th Cir. 2003). The failure to exhaust nonjudicial administrative remedies that are not 7 jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment 8 motion. Id. at 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 9 368 (9th Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust 10 administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact. 11 Id. at 1119-20. If the court concludes that the prisoner has failed to exhaust administrative remedies, 12 the proper remedy is dismissal without prejudice. Id. 13 Defendants have demonstrated that Plaintiff has failed to properly exhaust his administrative 14 remedies prior to filing suit. As Defendants correctly note, Plaintiff has failed to comply with DVI’s 15 procedural requirements regarding timely filing of appeals. 16 III. Conclusion and Recommendation 17 The Court finds that Plaintiff has failed to properly exhaust his administrative remedies, as 18 required by the PLRA. Accordingly, it is HEREBY RECOMMENDED that Defendants’ motion 19 to dismiss, filed on March 4, 2010, be GRANTED. 20 These Findings and Recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 22 days after being served with these Findings and Recommendations, any party may file written 23 objections with the Court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 25 shall be served and filed within ten (10) days after service of the objections. The parties are advised 26 that failure to file objections within the specified time may waive the right to appeal the District 27 /// 28 /// 3 1 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 2 3 IT IS SO ORDERED. 4 Dated: ie14hj June 20, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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