-KJN (PC) Armentero v. Dickinson, et al.,, No. 2:2010cv00965 - Document 59 (E.D. Cal. 2011)
Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 7/1/11 ORDERING the Clerk to appoint a District Judge to this Action. This CASE has been Assigned to District Judge Kimberly J. Mueller and Magistrate Judge Kendall J. Newman. The New Case Number is: 2:10-cv-00965 KJM KJN (PC). IT IS RECOMMENDED that Defendant's Motion to Dismiss 50 be denied. Motion to dismiss 50 referred to U.S. District Judge Kimberly J. Mueller. Within twenty one days after being served with these Findings and Recommendations, any party may file written objections with the Court and serve a copy on all parties. (Mena-Sanchez, L) Modified on 7/6/2011 (Plummer, M).
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-KJN (PC) Armentero v. Dickinson, et al., Doc. 59 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LUIS ARMENTERO, 11 12 13 Plaintiff, vs. K.L. DICKINSON, et al., 14 ORDER AND Defendants. 15 16 No. 2: 10-cv-0965 KJN P FINDINGS & RECOMMENDATIONS / I. Introduction 17 Plaintiff is a state prisoner proceeding without counsel with a civil rights action 18 pursuant to 42 U.S.C. § 1983. Pending before the court is the motion to dismiss for failure to 19 exhaust administrative remedies filed June 13, 2011, by defendants Duncan, May, Pappa and 20 Sinkovich.1 After carefully considering the record, the undersigned recommends that defendants’ 21 motion be denied. 22 II. Legal Standard re: Exhaustion 23 24 The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. 25 26 1 Service of defendant Tanner has not yet been effected. 1 Dockets.Justia.com 1 § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional 2 facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 3 Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 4 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of 5 confinement, whether they involve general circumstances or particular episodes, and whether 6 they allege excessive force or some other wrong. Porter, 534 U.S. at 532. 7 Exhaustion of all “available” remedies is mandatory; those remedies need not 8 meet federal standards, nor must they be “plain, speedy and effective.” Id. at 524; Booth v. 9 Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in 10 grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 11 U.S. at 741. A prisoner “seeking only money damages must complete a prison administrative 12 process that could provide some sort of relief on the complaint stated, but no money.” Id. at 734. 13 The fact that the administrative procedure cannot result in the particular form of relief requested 14 by the prisoner does not excuse exhaustion because some sort of relief or responsive action may 15 result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes 16 of exhaustion requirement include allowing prison to take responsive action, filtering out 17 frivolous cases, and creating administrative records). 18 However, a prisoner need not exhaust further levels of review once he has either 19 received all the remedies that are “available” at an intermediate level of review, or has been 20 reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 21 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some 22 relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent 23 relief remained available, whether at unexhausted levels or through awaiting the results of the 24 relief already granted as a result of that process. Brown, 422 F.3d at 936-37. 25 26 As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). “Proper exhaustion demands compliance with an 2 1 agency’s deadlines and other critical procedural rules because no adjudicative system can 2 function effectively without imposing some orderly structure on the course of its proceedings.” 3 Id. at 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to 4 properly exhaust. Id. The PLRA’s exhaustion requirement cannot be satisfied “by filing an 5 untimely or otherwise procedurally defective administrative grievance or appeal.” Id. at 83-84. 6 The State of California provides its prisoners the right to appeal administratively 7 “any departmental decision, action, condition or policy which they can demonstrate as having an 8 adverse effect upon their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a) (2010). It also provides 9 them the right to file appeals alleging misconduct by correctional officers and officials. Id. at 10 § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner 11 must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal 12 on a 602 inmate appeal form, (3) second level appeal to the institution head or designee, and 13 (4) third level appeal to the Director of the California Department of Corrections and 14 Rehabilitation. Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal.Code 15 Regs. tit. 15, § 3084.5). A final decision from the Director’s level of review satisfies the 16 exhaustion requirement under § 1997e(a). Id. at 1237-38. 17 Non-exhaustion under § 1997e(a) is an affirmative defense which should be 18 brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil 19 Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court 20 may look beyond the pleadings to determine whether a plaintiff exhausted his administrative 21 remedies. Id. at 1119-20. 22 III. Background 23 This action is proceeding on the second amended complaint filed October 7, 2010. 24 (Dkt. No. 33.) On November 4, 2010, the undersigned issued an order finding that the second 25 amended complaint stated two potentially colorable claims for relief. (Dkt. No. 34.) 26 //// 3 1 Plaintiff alleges that defendants ordered his transfer in retaliation for his filing a lawsuit against them. These allegations state a potential colorable claim for relief. His claim that defendant Sinkovich attempted to cover-up the alleged retaliation by misprocessing his grievances is potentially colorable as well. 2 3 4 5 (Id., at 3: 5-8.) The undersigned found that the remaining claims contained in the second 6 amended complaint were not colorable, i.e. 1) alleged denial of due process at the classification 7 committee hearing that resulted in the temporary deprivation of personal property; 2) alleged 8 denial of due process at the classification committee hearing that resulted in transfer; 3) alleged 9 denial of due process at the classification committee hearing that resulted in classification on “C” 10 status. (Id., at 1-3.) 11 IV. Discussion 12 In the motion to dismiss, defendants state that the court ordered service of 13 plaintiff’s claim that defendants retaliated against him by placing him on “C” status. Defendants 14 then argue that plaintiff did not exhaust administrative remedies as to this claim. Attached to 15 defendants’ motion is a declaration by D. Foston, the Chief of the Inmate Appeals Branch for the 16 California Department of Corrections and Rehabilitation. D. Foston states that he was asked by 17 defense counsel to research whether plaintiff had exhausted an appeal regarding “retaliation 18 and/or placement on ‘C’ status.” According to D. Foston, plaintiff did not exhaust administrative 19 remedies as to these claims. 20 As discussed above, this action is proceeding on plaintiff’s claim that defendants 21 ordered his transfer to Avenal State Prison in retaliation for his legal activities. This action is not 22 proceeding on a claim that defendants placed plaintiff on “C” status in retaliation for his legal 23 activities. The second amended complaint suggests that plaintiff’s placement on “C” status was 24 separate from his transfer to Avenal. Plaintiff alleges that he was placed on “C” status on June 25 30, 2009. (Dkt. No. 33 at 9-10.) Plaintiff alleges that he was transferred to Avenal on or around 26 December 23, 2009. (Id., at 11.) In addition, the second amended complaint does not contain a 4 1 retaliation claim based on plaintiff’s placement on “C” status. 2 While D. Foston’s declaration states that he was asked to research whether 3 plaintiff exhausted administrative remedies as to any claims involving “retaliation and /or ‘C’ 4 status,” the undersigned does not find that this declaration adequately demonstrates that plaintiff 5 failed to exhaust administrative remedies regarding the allegedly retaliatory transfer claim. 6 Rather, it appears that D. Foston researched only whether plaintiff exhausted administrative 7 remedies regarding being placed on “C” status for allegedly retaliatory reasons. 8 9 10 In conclusion, defendants’ motion to dismiss for failure to exhaust administrative remedies should be denied because it does not address the claims on which this action is proceeding. 11 12 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a district judge to this action; 13 14 IT IS HEREBY RECOMMENDED that defendants’ motion to dismiss (Dkt. No. 50) be denied. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 17 one days after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 objections shall be filed and served within fourteen days after service of the objections. The 21 parties are advised that failure to file objections within the specified time may waive the right to 22 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 DATED: July 1, 2011 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 24 25 26 arm965.mtd 5
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