(PC) Bun v. Felker et al, No. 2:2009cv00631 - Document 42 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/28/11 RECOMMENDING that 23 Motion to Dismiss for failure to exhaust administrative remedies be denied. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 14 days.(Dillon, M)
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(PC) Bun v. Felker et al Doc. 42 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CHANTHON BUN, Plaintiff, 11 12 vs. 13 No. CIV S-09-0631 LKK EFB P T. FELKER, et al., Defendants. 14 / 15 16 FINDINGS AND RECOMMENDATIONS Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. Defendants Brown, Kissinger, Watkins, Hook, Kirkland, Handshumaker, 18 Essman, Lower, Felker, Sanchez, Garate, Aurich, Ramsey, and Kirkland (“defendants”) move to 19 dismiss on the ground that plaintiff has failed to exhaust administrative remedies.1 See Defs.’ 20 Mot. to Dism., Dckt. No. 23 (“Mot.”). Plaintiff filed an opposition and defendants filed a reply. 21 Dckt. Nos. 25, 31. Thereafter, plaintiff filed a surreply.2 Dckt. No. 37. For the reasons that 22 follow, the court recommends that the motion be denied. 23 24 25 1 Although defendants Perry and Marsh have been served, they did not join in the motion. See Dckt. Nos. 33, 38. 2 26 As a surreply is neither contemplated by the Federal Rules of Civil Procedure nor the Local Rules, it will be disregarded. 1 Dockets.Justia.com 1 I. 2 Exhaustion Under The PLRA The Prison Litigation Reform Act (PLRA) provides that “no action shall be brought with 3 respect to prison conditions under section 1983 of this title, . . . until such administrative 4 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Prison conditions” subject to 5 the exhaustion requirement have been defined broadly as “the effects of actions by government 6 officials on the lives of persons confined in prisons.” 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 7 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 8 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the 9 claims the plaintiff has included in the complaint, but need only provide the level of detail 10 required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. 11 Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials 12 “time and opportunity to address complaints internally before allowing the initiation of a federal 13 case”). 14 Prisoners who file grievances must use a form provided by the California Department of 15 Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline 16 the action requested. The grievance process, as defined by California regulations, has three 17 levels of review to address an inmate’s claims, subject to certain exceptions. See Cal. Code 18 Regs. tit. 15, § 3084.7. Administrative procedures generally are exhausted once a plaintiff has 19 received a “Director’s Level Decision,” or third level review, with respect to his issues or claims. 20 Cal. Code Regs. tit. 15, § 3084.1(b). 21 Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 22 741 (2001), and “[p]roper exhaustion demands compliance with an agency’s deadlines and other 23 critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006). However, an inmate is 24 required to exhaust those remedies that are available; for a remedy to be “available,” there must 25 be the “possibility of some relief. . . .” Booth, 532 U.S. at 738. Relying on Booth, the Ninth 26 Circuit has held: 2 1 2 3 4 [A] prisoner need not press on to exhaust further levels of review once he has received all “available” remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). Although a motion to dismiss for failure to exhaust administrative remedies prior to filing 5 suit is normally brought under Rule 12(b) of the Federal Rules of Civil Procedure, Wyatt v. 6 Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), when ruling on such a motion requires the court 7 to look beyond the pleadings in the context of disputed issues of fact the court must do so under 8 “a procedure closely analogous to summary judgment.” Id. 1119, n.14. Because care must be 9 taken not to resolve credibility on paper as it pertains to disputed issues of material fact, the 10 undersigned applies the standards applicable under Rule 56 to exhaustion motions which require 11 consideration of materials extrinsic to the complaint. See Chatman v. Felker, No. Civ. S-06- 12 2912 LKK EFB, 2010 WL 3431806, at *2-3 (E.D. Cal. Aug. 31, 2010). 13 14 15 16 17 18 19 Defendants bear the burden of proving plaintiff’s failure to exhaust. Wyatt, 315 F.3d at 1119. To bear this burden: a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case . . . . With regard to the latter category of evidence, information provided [to] the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, “available.” 20 21 22 Brown, 422 F.3d at 936-37 (citations omitted). On April 12, 2010, the court advised plaintiff of the requirements for opposing a motion 23 to dismiss for failure to exhaust available administrative remedies as well as a motion pursuant 24 to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 25 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849 F.2d 26 409 (9th Cir. 1988); Wyatt, 315 F.3d at 1120, n.14. 3 1 2 II. Plaintiff’s Allegations This action proceeds on plaintiff’s original complaint. Compl., Dckt. No. 1 (“Compl.”). 3 Plaintiff alleges the following. On November 24, 2006, a member of the High Desert State 4 Prison staff (defendant Aurich) was assaulted. Id. at 4.3 Plaintiff, along with eighteen other 5 inmates, was suspected of being involved. Id. After the assault, defendant Marsh kept plaintiff 6 in handcuffs, and on his knees, contaminated with pepper spray, for over eight hours. Id. at 27. 7 Defendants Marsh, Perry, Hook, Lower, Handshumacker, and Ramsey also took plaintiff outside 8 for thirty minutes in sub-zero temperatures, while plaintiff was wearing only boxer shorts and 9 ankle shackles. Id. at 9, 27. Despite various injuries and a need for medical attention, 10 defendants Kirkland, Kissinger, and Perry denied plaintiff’s requests for medical care. Id. at 24- 11 25, 28. Plaintiff told defendant Watkins, a medical technical assistant, about his injuries, but she 12 refused to treat him. Id. at 8. Watkins also falsified a medical report, indicating that plaintiff 13 was allowed to decontaminate from the pepper spray, which was false. Id. Defendants Sanchez 14 and Essman did not give plaintiff food from November 24, 2006 to November 28, 2006. Id. at 9- 15 10. On November 28, 2006, defendant Kirkland pushed plaintiff into a holding cage, attempted 16 to scrape plaintiff’s face against the cage, and directed racial epithets at plaintiff. Id. at 10-11. 17 Kirkland stripped plaintiff to his boxers and put him in a cell that was flooded with toilet water, 18 had no mattress, bedding or hygiene items, and no soap to clean his wounds. Id. at 11-12. From 19 this point through August 2007, Kirkland, who was sometimes joined by defendants Kissinger, 20 Sanchez, Garate, or Aurich, would pull plaintiff from his cell at least every week for a cell 21 search, and when plaintiff would return, his cell would be flooded with toilet water, and his 22 property, including inmate appeals, his toothbrush, soap and bedding, would be missing or 23 thrown in the toilet. Id. at 13, 15-17, 21-23. These defendants would also refuse to give plaintiff 24 yard time, laundry service or other programs, tamper with or throw plaintiff’s food at him, 25 3 26 For ease of reference, all references to page numbers in the complaint are to those assigned via the court’s electronic filing system. 4 1 confiscate his incoming and outgoing mail, and direct racial epithets at him. Id. at 18-20. 2 Kirkland continued to harass plaintiff until October 5, 2008. Id. at 18, 23-24, Exs. P, Q, R. On 3 March 20, 2008, April 11, 2008, and April 27, 2008, plaintiff informed defendant Felker about 4 the constant harassment from Kirkland and his junior officers. Id. at 23. 5 Liberally construed, plaintiff’s complaint states the following claims: 1) Eighth 6 Amendment claims against defendants Marsh, Perry, Hook, Lower, Handshumacker, Ramsey, 7 Kirkland, Kissinger, Watkins, Sanchez, and Essman for their alleged treatment of plaintiff 8 immediately following the November 24, 2006 assault; 2) Eighth Amendment and First 9 Amendment retaliation claims against defendants Kirkland, Kissinger, Sanchez, Garate and 10 Aurich, based upon plaintiff’s allegations that between November 28, 2006 and October 5, 2008, 11 one or more of these defendants continued to harass plaintiff by subjecting him to physical 12 assaults, unnecessary cell searches and unsanitary conditions, depriving him of basic necessities, 13 tampering with his food, using racial epithets, destroying his personal and legal property, 14 including inmate appeals, denying him yard time and other programs, and throwing away his 15 mail; and 3) an Eighth Amendment claim against defendant Felker, for allegedly failing to 16 protect plaintiff from the constant harassment. 17 III. 18 Plaintiff’s Inmate Appeals In support of their motion to dismiss, defendants submit: 1) portions of plaintiff’s 19 medical and central files; 2) the declaration of D. Foston, the Chief of the Inmate Appeals 20 Branch for the California Department of Corrections and Rehabilitation (“Foston Decl.”); and 3) 21 the declaration of D. Clark, the Appeals Coordinator for the Institutional Appeals Office at High 22 Desert State Prison (“Clark Decl.”). According the Foston and Clark Declarations, only the 23 following eight of plaintiff’s inmate appeals were accepted for review between November 24, 24 2006 and November 26, 2008. Foston Decl. ¶¶ 3-5; Clark Decl. ¶¶ 6-8. 25 //// 26 //// 5 1 A. Appeal HDSP-Z-07-01911 2 This appeal is dated May 20, 2007. Clark Decl., Ex. 1. In this appeal, plaintiff 3 challenged the Rules Violation Report finding him guilty of attempted murder on a peace officer 4 and requested that the charge be expunged from his record. Id. Plaintiff also claimed that 5 because of the charge, he was being retaliated against in that he was being denied access to his 6 mail, and requested that he be transferred to another prison to avoid the retaliation. Id. Plaintiff 7 pursued this appeal through the second level of review. Id. ¶ 8, Ex. 1. 8 B. Appeal HDSP-Z-07-02169 9 This appeal is dated June 17, 2007. Id., Ex. 2. Plaintiff claimed that from December 5, 10 2007 through June 14, 2007, Kirkland had tampered with plaintiff’s food and conducted 11 “random” cell searches in retaliation for plaintiff’s attempted murder charge. Id. Plaintiff also 12 claimed Kirkland had put his bedding, soap, shampoo and toothbrush in the toilet, threw away 13 plaintiff’s property, and denied him yard time. Id. Plaintiff stated he had filed many inmate 14 appeals without ever getting a response back, because his appeals and his mail were being 15 thrown away. Id. Plaintiff pursued this appeal through the first level of review. Id. ¶ 8, Ex. 2. 16 C. Appeal HDSP-Z-07-03229 17 This appeal is dated September 17, 2007. Id., Ex. 3. In this appeal, plaintiff explained 18 that Kirkland had been denying plaintiff yard time and “randomly” searching plaintiff’s cell to 19 look for inmate appeals against him. Id. Plaintiff noted that on February 2, 2007, Kirkland and 20 Aurich threw plaintiff’s dinner at him. Id. Plaintiff claimed that Kirkland and Aurich later 21 searched plaintiff’s cell and confiscated plaintiff’s personal property, including an inmate appeal 22 plaintiff had prepared regarding the thrown food. Id. Plaintiff also stated that in July 2006, 23 Kirkland threw bars of soap at plaintiff, searched plaintiff’s cell and, as Kirkland had done in the 24 past, removed all personal, legal and bedding items, including appeal HDSP-Z-07-1911, which 25 was on its way to the final level of review. Id. Plaintiff requested that Kirkland be investigated 26 //// 6 1 for his misconduct. Id. Plaintiff pursued the appeal through the third level of review. Id. ¶ 8, 2 Ex. 3; Foston Decl. ¶ 3. 3 D. Appeal HDSP-Z-07-03710 4 This appeal is dated October 31, 2007. Clark. Decl., Ex. 4. In this appeal, plaintiff 5 challenged a rules violation report finding him guilty of altering state clothing. Id. Plaintiff also 6 alleged that Kirkland had refused to let plaintiff out to yard and searched plaintiff’s cell in 7 retaliation for plaintiff filing complaints against him. Id. Plaintiff also claimed that Kirkland 8 had retaliated against him by taking his clothing, smashing his food, throwing away his 9 toothbrush, toothpaste, soap and toilet paper, and sometimes throwing toilet water in his 10 bedding. Id. This appeal was denied at the second level, where it was considered exhausted. Id. 11 ¶ 8, Ex. 4; Foston Decl. ¶ 5. 12 E. Appeal HDSP-Z-08-00254 13 This appeal is dated January 13, 2007. Clark Decl., Ex. 5. In this appeal, plaintiff 14 claimed that Aurich had been harassing plaintiff with offensive comments and by implying he 15 had tampered with plaintiff’s food. Id. Plaintiff indicated he had previously complained about 16 Aurich. Id. Plaintiff claimed Kirkland has been threatening him and that both Kirkland and 17 Aurich were in a campaign of harassment against plaintiff. Id. Plaintiff pursed this appeal 18 through the first level of review. Id. ¶ 8, Ex. 5. 19 F. Appeal HDSP-Z-08-01206 20 This appeal is dated April 26, 2008. Id., Ex. 6. In this appeal, plaintiff explained that he 21 previously appealed the same matter but received no response. Id. Plaintiff claimed that on 22 April 10, 2008, Kirkland, who was working overtime in Z-Unit, threw away plaintiff’s mail, as 23 he had done in the past, in retaliation for inmate appeals plaintiff had filed against him. Id. 24 Plaintiff pursued this appeal through the third level of review. Id. ¶ 8; Foston Decl. ¶¶ 3, 5. 25 //// 26 //// 7 1 G. Appeal HDSP-Z-08-01906 2 This appeal is dated June 21, 2008. Clark Decl., Ex. 7. In this appeal, plaintiff 3 complained that the appeals coordinator had sent plaintiff’s previously filed inmate appeal 4 regarding Kirkland not giving plaintiff laundry, to Kirkland, even though plaintiff explained in 5 the earlier appeal that Kirkland throws his inmate appeals away. Id. Plaintiff noted that he 6 informed the appeals coordinator that Kirkland had not responded to the earlier filed inmate 7 appeal because Kirkland probably threw it away. Id. Plaintiff alleged that Kirkland had been 8 retaliating against plaintiff in this way for the last year, and added that Kirkland had refused to 9 feed and/or tampered with plaintiff’s food, thrown away plaintiff’s mail, legal papers and 10 hygiene items, thrown toilet water on his bedding, called plaintiff racial epithets, and denied 11 plaintiff yard. Id. Plaintiff pursued this appeal through the first level of review. Id. ¶ 8, Ex. 7. 12 H. Appeal HDSP-Z-08-01989 13 This is a group appeal, which plaintiff signed as a group member, on June 20, 2008. Id., 14 Ex. 8. The appeal requested that televisions be allowed in the Z-Unit. Id. While this appeal was 15 pursued through the third level of review, it does not address the claims raised by plaintiff in this 16 lawsuit. See id. ¶ 8, Ex. 8; Foston Decl. ¶ 3. 17 IV. Defendants’ Motion to Dismiss for Failure to Exhaust Administrative Remedies 18 A. Defendants’ Motion 19 Defendants move pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to 20 dismiss some of plaintiff’s claims for failure to exhaust. Defendants argue: 1) that plaintiff’s 21 claims arising out the alleged treatment he received immediately following the November 24, 22 2006 assault are unexhausted because plaintiff failed to file any inmate appeal concerning those 23 events; and 2) that plaintiff’s appeals did not exhaust his claims against Aurich, and only 24 exhausted some of his claims against Kirkland, because plaintiff failed to timely appeal the 25 alleged actions giving rise to those claims. Mot., Mem. of P. & A. in Supp. Thereof (“Defs.’ P. 26 & A.”) at 10-12. 8 1 As discussed above, defendants submit evidence that between November 24, 2006 and 2 November 26, 2008, plaintiff submitted eight inmate appeals that were accepted for review. 3 Defendants argue that none of these appeals concern his alleged treatment immediately 4 following the staff assault on November 24, 2006. Id. at 10. Defendants also submit evidence 5 that administrative remedies were available to plaintiff. According to the declaration of D. 6 Clark, Appeals Coordinator at High Desert State Prison, an inmate in administrative segregation 7 may submit any inmate appeals to any staff member for that staff member to place in the mail 8 bag for processing. Clark Decl. ¶ 5. Defendants submit evidence that while plaintiff was in 9 administrative segregation from November 2006 through November 2008, he came into contact 10 with custody officers from every work shift on a daily basis. Mot., Ex. A (custody records). 11 Defendants also submit evidence that plaintiff was seen by medical, dental or psychiatric staff on 12 various dates. Mot., Exs. A, B (medical records). Defendants contend that during any of these 13 visits, plaintiff “could have submitted an inmate appeal to staff members, including the custody 14 staff officers who escorted him to these appointments and the medical staff who evaluated him.” 15 Defs.’ P. & A. at 10. 16 Defendants also concede that plaintiff exhausted appeals HDSP-Z-07-03229, HDSP-Z- 17 07-03710, and HDSP-Z-08-01206. Id. According to defendants, however, appeal HDSP-Z-07- 18 03710 did not address the issues raised by this lawsuit, and appeals HDSP-Z-07-03229 and 19 HDSP-Z-08-01206, while referencing defendants or issues raised by this lawsuit, did not exhaust 20 all of plaintiff’s claims. Id. at 10-13. 21 Defendants argue that appeal HDSP-Z-07-03229 “only exhausted events that allegedly 22 happened fifteen working days before the date” of the appeal, i.e., only claims contained in the 23 appeal that occurred between August 24, 2007 and September 17, 2007. See id. at 12. 24 //// 25 //// 26 //// 9 1 Defendants cite to Cal. Code Regs., tit. 15, § 3084.6(c), which stated that an inmate appeal must 2 be submitted “within 15 working days of the event or decision being appealed . . . .”4 See id. at 3 11-12. Defendants contend that all allegations in the appeal regarding events that occurred 4 before August 24, 2007 are not exhausted because they were not timely raised. Id. at 12. 5 Applying the same reasoning, defendants argue that because appeal HDSP-Z-07-01206 6 was dated April 26, 2008, plaintiff “could only appeal events that occurred between April 7, 7 2008, and April 26, 2008.” Id. Defendants also argue that the appeal could not have exhausted 8 any of plaintiff’s claims anyway, because plaintiff alleged in his complaint that Kirkland was not 9 assigned to his housing unit in April 2008, and because “[t]here are no specific allegations of 10 misconduct on the part of Kirkland between April 7, 2008 and April 26, 2008, contained within 11 his complaint . . . .” Id. 12 B. Plaintiff’s Opposition 13 In his opposition, plaintiff asserts that prison staff retaliated against him and harassed him 14 because of his alleged involvement in the November 24, 2006 staff assault. Pl.’s Opp’n to Mot., 15 Dckt. No. 25 at 2. He claims that despite his requests, he was not provided with an inmate 16 appeal form until December 1, 2006. Id. at 2-3. Plaintiff claims he prepared an inmate appeal 17 regarding the events of November 24, 2006 through November 28, 2006, but that Kirkland and 18 others confiscated it. Id. at 3. Plaintiff claims he continued to try to file an appeal, but either 19 Kirkland or Kissinger, who were responsible for picking up mail, would throw the appeals away. 20 Id. at 3-4. Plaintiff claims further that Kirkland would “always” conduct cell searches looking 21 for plaintiff’s inmate appeals and that plaintiff could not send out an appeal because correctional 22 officers would throw them away. Id. at 4, 9. Additionally, plaintiff states he could not give an 23 inmate appeal to medical staff because it would result in retaliation. Id. at 9. Plaintiff claims that 24 25 26 4 Section 3084.6(c) has since been amended and section 3084.8(b), effective January 28, 2011, now provides that the appeal must be submitted within “30 calendar days” of the event or decision being appealed. 10 1 he was finally able to get an appeal through on May 19, 2007, with the help of another inmate.5 2 Id. at 4. After filing this appeal, plaintiff claims he was assured by a lieutenant that if plaintiff 3 gave his appeals directly to him, his appeals would be processed. Id. 4 C. Defendants’ Reply 5 In their reply brief, defendants argue that plaintiff has presented no admissible evidence 6 that Kirkland, or anyone else, interfered with his attempts to file inmate appeals by throwing 7 them away. Defs.’ Reply to Opp’n, Dckt. No. 31 (“Reply”) at 3-4. Defendants also argue that 8 plaintiff did not file any appeal that named defendants Brown, Kissinger, Watkins, Hook, 9 Handschumaker, Essman, Lower, Felker, Sanchez, Garate, or Ramsey. Id. at 2. 10 Further, defendants contend that plaintiff had access to the inmate appeals system 11 through the lieutenant referenced in plaintiff’s opposition brief. Reply at 2-3. Defendants 12 contend that while inmate appeals normally must be submitted within 15 days of the event being 13 appealed, plaintiff could have submitted an untimely appeal to the lieutenant with an explanation 14 for the appeal’s untimeliness, and that the appeal would have been accepted for review and could 15 have exhausted his claims. Id. Defendants submit evidence that “if an inmate submits an appeal 16 that includes a statement explaining why he could not submit the appeal within the time frame 17 under 3084.6, depending on the explanation, the appeal will generally be accepted for review.” 18 Id., Suppl. Decl. of Clark in Supp. Thereof ¶ 3. Defendants use appeal HDSP-Z-07-03229 as an 19 example of an appeal accepted for review this way, and suggest that plaintiff could have pursued 20 other appeals this same way in order to satisfy the exhaustion requirement. Reply at 3. 21 //// 22 //// 23 24 25 26 5 While plaintiff does not identify by number the appeal he submitted on May 19, 2007, the court notes that the first appeal filed by plaintiff that was accepted for review during the relevant time period is appeal HDSP-Z-07-01911, which was dated May 20, 2007. See Clark Decl., ¶ 8, Ex. 1. 11 1 Defendants explain: 2 In appeal log number 07-03329, dated September 17, 2007, Bun complains of events that allegedly transpired before July 6, 2007. (Decl. Clark Ex. 3.) The appeal was accepted for review, with Bun’s explanation that he had submitted previous appeals, with no response. (Decl. Clark Ex. 3.) 3 4 5 Id. 6 V. 7 Analysis The court finds that defendants have not met their burden of proving the absence of 8 exhaustion. Defendants concede that plaintiff exhausted appeals HDSP-Z-07-03710, HDSP-Z- 9 07-03229, and HDSP-Z-08-01206. Defs.’ P. & A. at 10. 10 Defendants barely discuss appeal HDSP-Z-07-03710 in their motion, stating only that it 11 was exhausted, but “did not deal the issues raised by this lawsuit.” Id. According to defendants, 12 this appeal “challenges the guilty finding of Rules Violation Report ASUZ-07-07-002, finding 13 Bun guilty of altering state clothing.” Id. at 5. Defendants fail to mention that the appeal also 14 included plaintiff’s complaints regarding ongoing harassment and retaliation from defendant 15 Kirkland and a request that Kirkland be reprimanded for his misconduct. See Clark Decl., Ex. 4. 16 As for the other two exhausted appeals, HDSP-Z-07-03229 and HDSP-Z-08-01206, 17 defendants argue in their motion that these appeals only exhausted events that allegedly 18 happened fifteen working days before each appeal was submitted, even though both appeals 19 were accepted for review and not screened out as untimely. Defs.’ P. & A. at 11-12; see also 20 Clark Decl., Exs. 3, 6; Id., ¶ 6 (“The appeals coordinator will review the appeal, and one of two 21 things will happen. The appeal will either be accepted for review, or it will be screened for any 22 of the reasons set out in California Code of Regulations section 3084.3.”). In advancing an 23 unrelated argument in their reply brief, however, defendants claim that as long as plaintiff 24 submitted an explanation for an appeal’s untimeliness, it would most likely be accepted for 25 review and would satisfy the exhaustion requirement. See Reply at 3-4. To make this point, 26 defendants used appeal HDSP-Z-07-03229 as an example, explaining that it was accepted for 12 1 review because it included “an explanation concerning why the appeal was not timely filed . . . .” 2 Id. at 3. 3 The argument in defendants’ reply brief directly undercuts the argument in their motion. 4 Defendants first argue that even appeals pursued through the final level of review, i.e., exhausted 5 appeals, exhaust only the allegations regarding events occurring within fifteen days of 6 submitting the appeal. Then defendants argue that a plaintiff may exhaust such untimely 7 allegations by submitting an appeal with an explanation as to why it contains those allegations. 8 Defendants acknowledge that appeal HDSP-Z-07-03229 contained such an explanation. See id. 9 Similarly appeal HDSP-Z-08-01206, which was dated April 26, 2008, included the following 10 11 12 explanation: This is a subsequent appeal of the same matter that I filed on 4-11-08 with no response. I also turned in a request for interview to your office (Appeal Coordinator) on 4-19-08 and notify you that I have not gotten a notice that my appeal has been process[ed]. Still I have not received a response from you. 13 14 Clark Decl., Ex. 6. The appeals coordinator had the option of screening out either appeal as 15 untimely, but instead, accepted both appeals for review. The court will not now screen out 16 portions of the inmate appeals that the appeals coordinator accepted for review. Accordingly, 17 the court finds that these appeals exhausted all of the allegations raised therein. 18 Defendants also argue that appeal HDSP-Z-07-01206, which referred to Kirkland’s 19 alleged misconduct in April 2008, could not have exhausted any of plaintiff’s claims because 20 plaintiff alleged in his complaint that Kirkland was not assigned to his housing unit during that 21 time. Defs.’ P. & A. at 12 (citing Compl. ¶ 53). In support of their argument defendants cite to 22 paragraph 53 of plaintiff’s complaint. Paragraph 53 goes on to allege: 23 24 However, [Kirkland] would somehow get assigned to Z-unit for over time and would take this opportunity to constantly harass plaintiff. Kirkland would also ask and incurrage [sic] the junior c/os to harass plaintiff. 25 Compl. ¶ 53. Plaintiff also cited to Exhibit P of his complaint, see id., ¶ 54, which includes an 26 April 11, 2008 letter from plaintiff to Warden Felker, specifically alleging that Kirkland worked 13 1 overtime in plaintiff’s unit on April 10, 2008, and “picked up [plaintiff’s] mail and crumbled it 2 and threw it on the floor” in retaliation for plaintiff’s attempted murder charge and for 3 complaining about Kirkland’s “harassment and misconduct.” Id., Ex. P. As defendants’ 4 argument rests on a narrow and incomplete reading of the complaint, the court finds it lacks 5 merit. 6 In all three of plaintiff’s exhausted appeals, plaintiff complained that he had been 7 harassed and retaliated against, mostly by Kirkland, because of plaintiff’s suspected involvement 8 in the November 24, 2006 staff assault and because plaintiff had filed inmate appeals. Plaintiff 9 included specific examples of the alleged harassment and retaliation, including confiscation of 10 his mail, inmate appeals and other property, including bedding and hygiene items, random cell 11 searches, food tampering, physical assaults, denial of yard time, and contamination of his cell 12 and property with toilet water. In light of these appeals, the court cannot find that defendants 13 have met their burden of proving the absence of exhaustion. 14 It is immaterial that plaintiff’s appeals did not specifically identify all of the defendants 15 in this action, as “exhaustion is not per se inadequate simply because an individual later sued 16 was not named in the grievances.” Jones, 549 U.S. at 219. It is also immaterial that plaintiff 17 may not have described every alleged instance of harassment or retaliation, as “plaintiff was not 18 required to limit the allegations in his civil rights complaint to the allegations set forth in his 19 administrative appeal[s].” Mehari v. Cox, No. Civ. S-08-1089 MCE DAD, 2009 U.S. Dist. 20 LEXIS 42207, at *9-10 (E.D. Cal. May 19, 2009). 21 22 23 A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation. 24 Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). See also Jones, 549 U.S. at 219 (citing 25 Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful that the primary 26 purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a 14 1 particular official that he may be sued; the grievance process is not a summons and complaint 2 that initiates adversarial litigation.”)). The court finds that plaintiff’s exhausted appeals were 3 sufficient to put prison officials on notice of his claims of ongoing harassment and retaliation 4 following the November 24, 2006 staff assault. 5 VI. 6 Conclusion As noted above, defendants have the burden to raise and prove the affirmative defense of 7 failure to exhaust administrative remedies. See Jones, 549 U.S. at 216; Wyatt, 315 F.3d at 8 1117-19. Defendants have not carried their burden in this instance. Accordingly, defendants’ 9 motion to dismiss for failure to exhaust administrative remedies prior to filing suit should be 10 11 12 denied. In accordance with the above, IT IS HEREBY RECOMMENDED that defendants’ July 29, 2010 motion to dismiss for failure to exhaust administrative remedies be denied. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 within the specified time may waive the right to appeal the District Court’s order. Turner v. 19 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 Dated: February 28, 2011. 21 22 23 24 25 26 15
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