Cato v. Avila et al
Filing
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ORDER DENYING 19 Defendants' Motion to Dismiss signed by Magistrate Judge Michael J. Seng on 11/16/2011. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMES CATO, JR.,
CASE NO.
1:10-cv-00793-MJS (PC)
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Plaintiff,
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v.
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS
(ECF No. 19)
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T. AVILA, et al.,
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Defendants.
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Plaintiff James Cato, Jr. (“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.
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Plaintiff began this action by filing his Complaint on May 5, 2010. (ECF No. 1.)
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He filed consent to Magistrate Judge jurisdiction on May 17, 2010. (ECF No. 5.) The
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Court screened Plaintiff’s Complaint on March 1, 2011, and found that Plaintiff stated a
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cognizable claim against Defendants Avila, Kavanaugh, Dumont, Rodriguez, Patrick,
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England, Bueno, Patterson, and Johnson for excessive force in violation of the Eighth
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Amendment. (ECF No. 11) Plaintiff submitted the required service documents for
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these Defendants and the United States Marshall effectuated service. (ECF Nos. 14 &
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15.)
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In lieu of an answer, Defendants Avila, Kavanaugh, Dumont, Rodriguez, Patrick,
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England, Bueno, Patterson, and Johnson filed a Motion to Dismiss on the ground that
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Plaintiff had failed to exhaust his administrative remedies pursuant to 42 U.S.C. §
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1997e(a). (ECF No. 19.) Plaintiff has filed an Opposition to the Motion to Dismiss
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(Opp., ECF No. 21), and Defendants filed a Reply (Reply, ECF No. 23). The Motion to
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Dismiss is now ready for ruling.
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I.
LEGAL STANDARD
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The Prison Litigation Reform Act (“PLRA”) stipulates, “No action shall be brought
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with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by
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a prisoner confined in any jail, prison, or other correctional facility until such
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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
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Therefore, prisoners are required to exhaust all available administrative remedies prior
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to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007). The Supreme Court held that
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“the PLRA's exhaustion requirement applies to all inmate suits about prison life,
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whether they involve general circumstances or particular episodes, and whether they
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allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
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(2002). Further, the exhaustion of remedies is required, regardless of the relief sought
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by the prisoner, as long as the administrative process can provide some sort of relief on
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the prisoner's complaint. Booth v. Churner, 532 U.S. 731, 741 (2001).
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The California Department of Corrections and Rehabilitation (“CDCR”)
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established an administrative system for prisoner's grievances. See Cal.Code Regs.,
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tit. 15 § 3084, et seq. To properly exhaust the administrative remedies, a prisoner must
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comply with the deadlines and other applicable procedural rules. Woodford v. Ngo, 548
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U.S. 81, 93 (2006).
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The exhaustion requirement of § 1997e(a) does not impose a pleading
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requirement, but rather is an affirmative defense under which defendants have the
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burden of proving the plaintiff failed to exhaust the available administrative remedies
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before filing a complaint in the District Court. Jones v. Bock, 549 U.S. 199, 216 (2007).
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A motion raising a prisoner's failure to exhaust the administrative remedies is properly
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asserted by way of an unenumerated motion under Fed.R.Civ.P 12(b). Wyatt v.
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Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003); Ritza v. Int'l Longshoremen's &
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Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium). In
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determining whether a case should be dismissed for failure to exhaust the
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administrative remedies, “the court may look beyond the pleadings and decide disputed
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issues of fact” in a procedure that is “closely analogous to summary judgment.” Id. at
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1119–20. When the court concludes the prisoner has not exhausted all of his available
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administrative remedies, “the proper remedy is dismissal without prejudice.” Id.
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II.
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ANALYSIS
Defendants move for dismissal pursuant to 42 U.S.C. § 1997e(a). Defendants
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argue that Plaintiff’s Complaint should be dismissed because Plaintiff failed to exhaust
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his administrative remedies as required by the PLRA.
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According to Defendants, Plaintiff “filed four grievances relevant to this lawsuit.
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The first two, log nos., COR-05-04597 and COR-05-04834, were denied at the first level
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of review and [Plaintiff] did not pursue the matter further.” (Mot. at 4.) Also according
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to Defendants, Plaintiff’s other two grievances were screened out as untimely. (Id.)
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Plaintiff asserts that his Complaint is not barred under the PLRA. Plaintiff
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opposes the Motion on the grounds that there is newly discovered evidence that
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indicates that he exhausted his administrative remedies, that appeal log COR-05-4597
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was completed and the requested relief was given, and that the appeals that he
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submitted were timely pursuant to the California Code of Regulations. (Pl. Opp. at 3-7.)
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The Court need not address Plaintiff’s first and third arguments in opposition to
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Defendants’ Motion at this time as analysis of Plaintiff’s second argument regarding log
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no. COR-05-4597 will be dispositive of this motion. Log no. COR-05-4597 was
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Plaintiff’s first grievance, and it encompasses all of Plaintiff’s claims and allegations. If
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Plaintiff satisfied his obligations under the PLRA for this one grievance, he will have
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sufficiently exhausted his administrative remedies for his claims and allegations.
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Log. No. COR-05-4597 appears to be the primary grievance giving rise to this
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lawsuit. It was the first grievance filed after the underlying incident and it describes the
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incident and Plaintiff’s requested relief in detail. (Campbell Decl. Ex. A.) Log No. COR-
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05-4597 was denied, but after denying the grievance, it states, “[a]lso, based on the
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fact-finding investigation, I have concluded my finding that your allegations are
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exonerated.” (Id. at 4.) Plaintiff argues that this language means that his grievance
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was granted and additional appeal was unnecessary. (Pl. Opp. at 5-6.) Defendants do
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not provide any explanation for the language
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A prisoner’s failure to exhaust may be excused where an inmate takes
“reasonable and appropriate steps to exhaust [a] claim,” but is precluded from doing so
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by the mistake or misconduct of a prison official. Nunez v. Duncan, 591 F.3d 1217,
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1224–25 (9th Cir. 2010); see also Ngo v. Woodford, 539 F.3d 1108, 1110 (9th Cir.
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2008) (suggesting a prisoner is excused from the exhaustion requirement when “prison
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officials obstruct[ ] his attempts to exhaust” or “procedures for processing grievances
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weren't followed by prison officials”). In Nunez, the plaintiff took various steps to
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exhaust the administrative remedies, including filing both formal and informal appeals,
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and “made every effort to make full use of the prison grievance process, but was
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stymied by the mistake.” Id. at 1224, 1226. In Sapp, another case where a plaintiff was
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frustrated from exhausting the administrative remedies, the court held that “improper
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screening of an inmate’s administrative grievances renders administrative remedies
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‘effectively unavailable’ such that exhaustion is not required under the PLRA.” Sapp v.
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Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010).
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Here, Plaintiff was frustrated from exhausting his administrative remedies
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because the decision in log No. COR-05-4597 allegedly, and understandably, led him to
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believe his appeal was granted and that no further action was required on his part
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under the PLRA. Given this frustration of his courses of review, PLRA exhaustion is
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excused. Sapp, 623 F.3d at 822. Defendants, having chosen not to address the
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conflicting language, have not carried their burden of demonstrating an unexcused
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failure to exhaust administrative remedies. Id. Defendants’ Motion to Dismiss must be
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denied.
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III.
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ORDER
Accordingly, Defendants Avila, Kavanaugh, Dumont, Rodriguez, Patrick,
England, Bueno, Patterson, and Johnson’s Motion to Dismiss is denied.
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IT IS SO ORDERED.
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Dated:
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November 16, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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