Anderson v. Phillips et al
Filing
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FINDINGS and RECOMMENDATION for Granting Defendants' 21 Motion to Dismiss without Prejudice for Failure to Exhaust Administrative Remedies, signed by Magistrate Judge Michael J. Seng on 6/29/11. Thirty-Day Deadline. Referred to Judge O'Neill. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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VERNON ANDERSON,
Plaintiff,
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FINDINGS AND RECOMMENDATION FOR
GRANTING DEFENDANTS’ MOTION TO
DISMISS WITHOUT PREJUDICE FOR
FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES
v.
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CASE NO. 1:09-cv-1050-LJO-MJS (PC)
BRIAN PHILLIPS, et al.,
Defendants.
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(ECF No. 21)
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ORDER
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I.
PROCEDURAL HISTORY
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Plaintiff Vernon Anderson (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pending before this
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Court is a Motion to Dismiss filed by Defendants Phillips and Myers on October 19, 2010.
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(Mot., ECF No. 21.) Plaintiff filed an opposition on December 9, 2010. (Opp’n, ECF No.
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24.) Defendants filed a reply on December 18, 2010. (Reply, ECF No. 25.)
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This action proceeds on Plaintiff’s Complaint filed June 8, 2009. (Compl., ECF No.
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1.) On March 18, 2010, the Court screened Plaintiff’s Complaint and found that, in alleging
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that Defendants Phillips and Myers denied Plaintiff authorized Kosher meals without
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penological justification, Plaintiff stated a cognizable claim against those Defendants for
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interfering with Plaintiff’s exercise of his religious beliefs in violation of the First
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Amendment. (Order, ECF No. 10.)
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II.
ARGUMENT
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In the instant Motion, Defendants argue that Plaintiff failed to exhaust his
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administrative remedies before filing this action. They highlight Plaintiff’s admission in his
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Complaint that he did not file a grievance concerning his claim for Halal food. Sworn
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statements attached to Defendants’ Motion show that Plaintiff did not file an appeal
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concerning the denial of Kosher foods and that he never received a third level decision
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regarding that alleged denial.
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In his Opposition, Plaintiff contends that the appeal, grievance, and administrative
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remedies at Pleasant Valley State Prison are ineffective. He attaches a copy of the original
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denial. (Opp’n, ECF No. 24 Ex. A.) Plaintiff asserts that other inmates were denied their
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religious meals and that their administrative appeals were never answered or returned. In
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short, it appears Plaintiff contends that filing an appeal for this incident would have been
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futile and that is why he did not comply with the exhaustion requirement.
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III.
LEGAL STANDARD
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“The Prison Litigation Reform Act [(“PLRA”)] requires that a prisoner exhaust
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available administrative remedies before bringing a federal action concerning prison
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conditions.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. §
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1997e(a)); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (quoting Porter v. Nussle,
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534 U.S. 516, 525 n.4 (2002)) (The PLRA “creates ‘a general rule of exhaustion’ for
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prisoner civil rights cases.”). “‘[T]he PLRA’s exhaustion requirement applies to all inmate
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suits about prison life, whether they involve general circumstances or particular episodes,
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and whether they allege excessive force or some other wrong.’” Bennett v. King, 293 F.3d
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1096, 1098 (9th Cir. 2002) (quoting Porter, 534 U.S. at 532); accord Roles v. Maddox, 439
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F.3d 1016, 1018 (9th Cir.), cert. denied, 549 U.S. 905 (2006). The PLRA’s “exhaustion
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requirement is mandatory.” McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per
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curiam); accord Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that
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exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought
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in court.”); see also Panaro v. City of North Las Vegas, 432 F.3d 949, 954 (9th Cir. 2005)
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(The PLRA “represents a Congressional judgment that the federal courts may not consider
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a prisoner’s civil rights claim when a remedy was not sought first in an available
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administrative grievance procedure.”). Even if the prisoner seeks monetary or other relief
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that is unavailable through the grievance system in question, the prisoner must still first
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exhaust all available administrative remedies. See Booth v. Churner, 532 U.S. 731, 741
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(2001) (“[W]e think that Congress has mandated exhaustion clearly enough, regardless of
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the relief offered through administrative procedures.”).
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While the PLRA requires “proper” exhaustion of available administrative remedies,
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Woodford v. Ngo, 548 U.S. 81, 93 (2006), it does not define the boundaries of proper
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exhaustion.
See Jones, 549 U.S. at 218.
Rather, “[p]roper exhaustion demands
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compliance with an agency’s deadlines and other critical procedural rules[.]” Woodford,
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548 U.S. at 90. “The level of detail necessary in a grievance to comply with the grievance
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procedures will vary from system to system and claim to claim, but it is the prison’s
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requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones,
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549 U.S. at 218; see, e.g., Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009, as
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amended June 5, 2009) (per curiam) (“The California prison system’s requirements define
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the boundaries of proper exhaustion.”) (internal quotation marks and citation omitted).
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Absent a prison grievance procedure mandating the naming of each individual involved,
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a prisoner need not identify all of the defendants later named in a lawsuit during the
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administrative grievance process. Jones, 549 U.S. at 218.
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The PLRA’s exhaustion requirement is not jurisdictional; rather, it creates an
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affirmative defense that a defendant may raise in an unenumerated Rule 12(b) motion.
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See Jones, 549 U.S. at 213-14; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert.
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denied, 540 U.S. 810 (2003). The defendant bears the burden of raising and proving the
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absence of exhaustion. Wyatt, 315 F.3d at 1119. Specifically, the defendant must show
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that some administrative relief remains available to the plaintiff “whether at unexhausted
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levels of the grievance process or through awaiting the results of the relief already granted
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as a result of that process.” Brown, 422 F.3d at 936-37. In deciding a motion to dismiss
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for failure to exhaust, a court may “look beyond the pleadings and decide disputed issues
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of fact.” Wyatt, 315 F.3d at 1119-20. When a prisoner has not exhausted administrative
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remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Id.
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at 1120. However, dismissal of the entire complaint is not required when a prisoner has
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exhausted some, but not all, of the claims included in the complaint. See Jones, 549 U.S.
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at 223-24.
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California provides its inmates and parolees the right to appeal administratively the
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alleged misconduct of correctional officers and “any departmental decision, action,
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condition or policy perceived by those individuals as adversely affecting their welfare.” Cal.
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Code Regs. tit. 15, § 3084.1(a), (e). In order to exhaust administrative remedies within this
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system, a prisoner normally must proceed through four levels: (1) initiation of informal
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resolution through submission of a CDC form describing the problem and the action
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requested; (2) first level formal written appeal to the prison’s appeals coordinator; (3)
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second level formal appeal to the institution’s warden or designee; and (4) third level formal
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appeal to the CDCR Director (“Director’s Level”). Id. § 3084.5; see Woodford, 548 U.S.
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at 90-91 (California prisoners are required to use the process established by Cal. Code
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Regs., tit. 15 §§ 3084.1, 3084.2-3084.6 in order to satisfy 42 U.S.C. § 1997e(a)); Porter,
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534 U.S. at 532 (the exhaustion requirement is mandatory and applies to all prisoner suits
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relating to prison life that do not implicate the duration of the prisoner’s sentence).
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IV.
ANALYSIS
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In his Complaint, Plaintiff acknowledges the existence of an administrative remedy
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available at his institution which he did not pursue regarding the incident giving rise to this
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Complaint. (Compl., ECF No. 1 at 3.) He did not pursue the remedy because, he
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contends, it would have been futile to do so.
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Futility is not an exception to the exhaustion requirement. Booth v. Churner, 532
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U.S. 731, 741 n.6 (2001) (“[W]e will not read futility or other exceptions into statutory
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exhaustion requirements where Congress has provided otherwise.”); see also Tatum v.
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Rosario, 2005 WL 2114190, *2 n.4 (E.D. Cal. Sep. 1, 2005).
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Because it is undisputed that Plaintiff did not properly exhaust his administrative
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remedies prior to bringing this action, the Court does not have jurisdiction over his claims.
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Defendants’ Motion to Dismiss for failure to exhaust administrative remedies therefore
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should be granted and the case dismissed without prejudice.
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V.
CONCLUSION
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For the reasons stated above, the Court recommends the following:
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Defendants’ Motion to Dismiss be GRANTED and
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Plaintiff’s action be DISMISSED WITHOUT PREJUDICE.
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These Findings and Recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).
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Within thirty days after being served with these Findings and Recommendations, any party
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may file written objections with the court and serve a copy on all parties. Such a document
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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”
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Any reply to the objections shall be served and filed within ten days after service of the
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objections. The parties are advised that failure to file objections within the specified time
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may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ci4d6
June 29, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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