(PC) Dodds v. Lascano et al, No. 1:2009cv00656 - Document 42 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending Defendants' 30 36 Motions to Dismiss be Granted in Part and Denied in Part signed by Magistrate Judge Dennis L. Beck on 07/13/2011. Referred to Judge Ishii; Objections to F&R due by 8/8/2011. (Flores, E)
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(PC) Dodds v. Lascano et al Doc. 42 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 Plaintiff, 10 11 CASE NO. 1:09-CV-00656-AWI-DLB PC JAYMAR DODDS, FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANTS’ MOTIONS TO DISMISS BE GRANTED IN PART AND DENIED IN PART v. E. LASCANO, et al., (DOCS. 30, 36) 12 Defendants. 13 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS / 14 15 16 Findings And Recommendations I. Background 17 Plaintiff Jaymar Dodds (“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. This action is proceeding 20 against Defendants E. Lascano, J. Hamlin, and B. Williams. On November 15, 2010 and April 6, 21 2011, Defendants filed motions to dismiss for Plaintiff’s failure to exhaust administrative 22 remedies pursuant to 42 U.S.C. § 1997a(e). Def. Williams’s Mot. Dismiss, Doc. 30; Defs. 23 Lascano and Hamlin’s Mot. Dismiss, Doc. 36. Plaintiff filed an opposition on May 13, 2011.1 24 Pl.’s Opp’n Doc. 40. Defendants filed a reply on May 20, 2011. Defs.’ Reply, Doc. 41. The 25 matter is submitted pursuant to Local Rule 230(l). 26 27 28 1 Plaintiff was provided with notice of the requirements for opposing an unenumerated Rule 12(b) motion on November 13, 2009. Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003); see Second Informational Order, Doc. 14. 1 Dockets.Justia.com 1 II. 2 Summary of Complaint The events giving rise to this action allegedly occurred at Kern Valley State Prison 3 (“KVSP”). Plaintiff alleges that on November 1, 2007, a cell search was conducted at KVSP. 4 Plaintiff alleges that Rivera and defendants Lascano and Williams ordered Plaintiff from his cell. 5 Plaintiff alleges that he was drugged/dragged in front of the unit counselor’s office, and ordered 6 strip searched while others were present. Plaintiff alleges that defendant Lascano authorized 7 Rivera and defendant Williams to confiscate Plaintiff’s bed linens, clothing, legal property, and 8 personal property. Plaintiff alleges that he was subsequently informed by prison staff that his 9 property was under investigation and would not be immediately returned. Plaintiff contends that 10 he was left in his cell for five or six days without a toothbrush, toothpaste, deodorant, soap or his 11 personal property. Plaintiff contends that he suffered from cold temperatures without state- 12 issued clothing and bed linens. Plaintiff alleges that he informed defendants Lascano and 13 Williams of the problems but they did nothing to assist him. Plaintiff states that he filed a 602 14 grievance and a citizen’s complaint concerning his treatment. Plaintiff alleges that defendants 15 Lascano and Hamlin retaliated against him by placing him in the “hole” for four months. 16 Plaintiff stated cognizable claims against Defendant Williams and Lascano for deliberate 17 indifference in violation of the Eighth Amendment regarding his conditions of confinement, and 18 against Lascano and Hamlin for retaliation in violation of the First Amendment. 19 III. Exhaustion Of Administrative Remedies 20 A. 21 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with Legal Standard 22 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 23 confined in any jail, prison, or other correctional facility until such administrative remedies as are 24 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 25 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney 26 v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required 27 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 28 Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all 2 1 2 prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 3 defense under which defendants have the burden of raising and proving the absence of 4 exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The 5 failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an 6 unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 7 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th 8 Cir. 1998) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative 9 remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Id. at 10 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, 11 the proper remedy is dismissal without prejudice. Id. 12 B. 13 The California Department of Corrections and Rehabilitation has an administrative Discussion 14 grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). At the time 15 the grievance was filed, the process was initiated by submitting a CDC Form 602. Id. § 16 3084.2(a). Four levels of appeal were involved, including the informal level, first formal level, 17 second formal level, and third formal level, also known as the “Director’s Level.” Id. § 3084.5. 18 Appeals must be submitted within fifteen working days of the event being appealed, and the 19 process is initiated by submission of the appeal to the informal level, or in some circumstances, 20 the first formal level. Id. §§ 3084.5, 3084.6(c). In order to satisfy § 1997e(a), California state 21 prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. 22 Ngo, 548 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always 23 require pursuit of an appeal through the Director’s Level of Review. What is required to satisfy 24 exhaustion is a fact specific inquiry, and may be dependent upon prison officials’ response to the 25 appeal. See Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of 26 exceptions to exhaustion requirement from other circuits); Brown v. Valoff, 422 F.3d 926, 935-36 27 (9th Cir. 2005) (“[E]ntirely pointless exhaustion” not required). 28 Defendants contend that Plaintiff did not exhaust administrative remedies. Defendants 3 1 contend that none of Plaintiff’s inmate appeals notified prison officials of the problem and the 2 action requested, or were properly exhausted. Defendants submit as exhibits in support inmate 3 grievance Nos. KVSP 08-00146, KVSP 08-00182, and KVSP 08-00232. 4 5 1. KVSP Grievance No. 08-00146 and 08-0182 In grievance No. 08-00146, Plaintiff complained of being strip searched and that he was 6 missing certain personal property following the November 1, 2007 incident. In grievance No. 7 08-00182, Plaintiff complained of being denied his personal and legal property. Plaintiff 8 requested the return of his property. 9 Defendants contend that Plaintiff did not complain of being deprived of his bedding, 10 linens, or personal hygiene items. That appears to be incorrect. In grievance No. 08-00146, 11 Plaintiff complained that he and his cell mate’s bedding was taken, and that some of their 12 hygiene products were busted open. See Ex. A, p. 12, Doc. 30-4. 13 However, Plaintiff failed to exhaust administrative remedies with these grievances. 14 Plaintiff grievances Nos. 08-00146 and 08-00182 were both denied at the First Level of review. 15 See Ex. A, p. A000001, Doc. 30-4; Ex. B., p. B00001, Doc. 30-5. There is no evidence to 16 indicate that Plaintiff appealed these grievances further. Thus, Plaintiff did not exhaust all 17 available administrative remedies with grievance Nos. 08-00146 and 08-00182. 18 19 2. KVSP Grievance No. 08-00232 In grievance No. 08-00232, Plaintiff complained that he had been placed in the 20 administrative segregation unit (“ASU”). Ex. C, pp. C00003-06, Doc. 30-6. Plaintiff 21 complained that his placement in ASU was retaliation for Plaintiff filing a previous inmate 22 grievance concerning his property. 23 Plaintiff requested as relief that: 1) he be provided with evidence as to his placement in ad 24 seg, or his immediate release from ASU 2) he be provided due process; and 3) that this grievance 25 be considered a citizen’s complaint against Defendant Hamlin. Plaintiff’s grievance was granted 26 at the first level of review pertaining to his request for release from ASU. 27 28 Defendants contend that 1) grievance No. 08-00232 does not exhaust administrative remedies as to Plaintiff’s claims for conditions of confinement; and 2) remedies remained 4 1 available for Plaintiff regarding Plaintiff’s claim of retaliation. Defs.’ Reply 2:17-5:24, Doc. 41. 2 A. 3 Conditions of Confinement Defendants contend that Plaintiff failed to notify prison officials of his conditions of 4 confinement issues with grievance No. 08-00232. Defs.’ Reply 4:11-19. Plaintiff contends that 5 Defendants' arguments that Plaintiff failed to notify prison officials of his conditions of 6 confinement are nonsensical because a grievance regarding missing property is about conditions 7 of confinement. Pl.’s Opp’n 5, Doc. 40. Plaintiff’s argument is incorrect. Where a prison’s 8 grievance procedures are silent or incomplete as to the level of factual specificity required, “‘a 9 grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.’” 10 Griffin v. Arpaio, 557 F.3d 1117, 1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 11 2002)). 12 Here, grievance No. 08-00232 complained of his placement in ASU. It is not clear that 13 Plaintiff sought remedy of his issues regarding conditions of confinement. The wrong mentioned 14 in grievance No. 08-00232 focused on his allegedly improper placement in ASU. While 15 Plaintiff’s property issues were mentioned, including deprivation of bed linens, state-issued 16 clothing, and personal property, Plaintiff did not identify a remedy sought regarding his property. 17 There is also no language that would inform prison officials that this deprivation of property 18 resulted in harm to Plaintiff regarding his conditions of confinement, namely the alleged harsh 19 conditions in his cell. The grievance was insufficient to place prison officials on notice of the 20 nature of the wrong and the redress sought regarding his conditions of confinement. 21 Accordingly, Plaintiff failed to exhaust administrative remedies regarding his conditions 22 of confinement claim with grievance No. 08-00232. Because Plaintiff’s conditions of 23 confinement claim was the only claim against Defendant Williams, the appropriate remedy is 24 dismissal of Defendant Williams from this action without prejudice. Wyatt, 315 F.3d at 1119-20. 25 26 B. Retaliation Defendants contend that Plaintiff had available administrative remedies. Defendants 27 contend that available remedies included his grievance being treated as a citizens complaint, a 28 formal investigation being done, a written apology, or an affirmation that his allegations had been 5 1 sustained. Defs.’ Reply, 4:3-24. Plaintiff contends that his grievance was granted at the first 2 level of review. Plaintiff contends that because the grievance was granted, he was under no 3 obligation to appeal further, and he has exhausted all available administrative remedies. Pl.’s 4 Opp’n 4. 5 Plaintiff cites to Harvey v. Jordan, 605 F.3d 681 (9th Cir. 2010), in support. In Harvey, 6 the plaintiff had appealed a delayed CDC 115 disciplinary hearing. Id. at 684-85. The plaintiff 7 requested that he be given a hearing with access to a requested video tape that would exonerate 8 him, or that the 115 charge be dropped. Id. at 685. Prison officials granted the plaintiff’s request 9 that he would be given a hearing and access to the video tape. Id. However, the plaintiff did not 10 receive the promised hearing for over five months. Id. The defendants contended that the 11 plaintiff should have appealed the grant of his grievance. Id. The Ninth Circuit found that the 12 plaintiff “has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in 13 order to exhaust his administrative remedies.” Id. 14 Here, based on the submitted evidence, Plaintiff received a grant of his grievance insofar 15 as he received release from ASU. Plaintiff’s request for an additional citizens complaint was not 16 granted. However, requesting alternative forms of relief does not change the result here. As 17 found by the Ninth Circuit, “[o]nce the prison officials purported to grant relief with which [the 18 prisoner] was satisfied, his exhaustion obligation ended. His complaint had been resolved, or so 19 he was led to believe, and he was not required to appeal the favorable decision.” Id. Thus, it 20 appears that Plaintiff has exhausted available administrative remedies regarding his retaliation 21 claim with grievance No. 08-00232. 22 IV. Conclusion And Recommendation 23 Based on the foregoing, it is HEREBY RECOMMENDED that: 24 1. 25 26 GRANTED in full; 2. 27 28 Defendant Williams’s motion to dismiss, filed November 15, 2010, be Defendant Williams be dismissed without prejudice for Plaintiff’s failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a); 3. Defendants Lascano and Hamlin’s motion to dismiss, filed April 6, 2011, be 6 1 2 GRANTED in part and DENIED in part; 4. Plaintiff’s condition of confinement claim against Defendant Lascano be 3 dismissed without prejudice for Plaintiff’s failure to exhaust administrative 4 remedies pursuant to 42 U.S.C. § 1997e(a); 5 5. Defendants’ motion to dismiss Plaintiff’s retaliation claim be DENIED; and 6 6. Defendants Lascano and Hamlin serve and file an answer within twenty (20) days 7 from the date of service of the District Judge’s order resolving these Findings and 8 Recommendations. 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty- 11 one (21) days after being served with these Findings and Recommendations, the parties may file 12 written objections with the Court. The document should be captioned “Objections to Magistrate 13 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 14 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 15 Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 16 17 IT IS SO ORDERED. Dated: July 13, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 7
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