(PC) Bartholomew v. Solorzano, No. 2:2012cv01116 - Document 23 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/14/12 recommending that defendant's motion to dismiss 18 be granted. Plaintiff's claims brought under the First and Eighth Amendment be dismissed without prejudice; and the clerk be directed to close this case. Motion to Dismiss 18 referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)
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(PC) Bartholomew v. Solorzano Doc. 23 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KEVIN BARTHOLOMEW, 11 12 13 Plaintiff, No. 2:12-cv-1116 LKK CKD P vs. A.V. SOLORZANO, 14 Defendant. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff, an inmate of the California Department of Corrections and 17 Rehabilitation (“CDCR”), proceeds pro se with a civil rights complaint filed pursuant to 42 18 U.S.C. § 1983. (Dkt. No. 1.) Plaintiff asserts claims under the First and Eighth Amendments 19 against defendant Solorzano, the sole named defendant. Defendant has moved to dismiss the 20 complaint on the ground that plaintiff failed to exhaust administrative remedies before filing suit. 21 (Dkt. No. 18.) Plaintiff opposes the motion (Dkt. Nos. 19, 22) and defendant has filed a reply 22 (Dkt. No. 20). 23 I. Allegations of the Complaint 24 The events giving rise to this lawsuit occurred at California State Prison- Solano 25 (CSP-Solano), where plaintiff was incarcerated and defendant was employed as a correctional 26 officer at all times relevant. On September 1, 2011, while processing plaintiff’s outgoing mail, 1 Dockets.Justia.com 1 defendant made comments about inmates’ rectums and stated to plaintiff: “Bartholomew have 2 you ever put anything up your ass, you know what they say about prison[.]” (Dkt. No. 1 at 5, 3 10.1) On September 2, 2011, plaintiff filed an inmate grievance reporting this incident and 4 alleging that defendant had sexually harassed him. (Id.) 5 On September 8, 2011, defendant asked plaintiff to withdraw the grievance but 6 plaintiff refused to do so. (Dkt. No. 1 at 5.) About an hour later, plaintiff asked defendant for 7 permission to take a shower. (Id.) Although defendant was letting other inmates into the shower, 8 defendant refused to allow plaintiff to shower, stating, “you write me up and expect a shower 9 lock it up[.]” (Id.) Defendant denied plaintiff showers on three more occasions that month. (Id.) 10 On March 19, 2012, defendant entered plaintiff’s cell and broke plaintiff’s 11 dentures and clock, stating “maybe next time you will think twice about filing a 602[.]”. (Dkt. 12 No. 1 at 17.) Without his dentures, plaintiff was injured and suffered pain when eating. (Id.) 13 Plaintiff commenced this federal action on April 26, 2012. (See Dkt. No. 1.) In a 14 screening order dated June 8, 2012, this court found that plaintiff had sufficiently stated claims as 15 follows: (1) “that Solorzano violated his rights under the First Amendment by restricting 16 plaintiff’s shower access in retaliation for plaintiff’s sexual harassment grievance against 17 Solorzano[;]” and (2) “that Solorzano violated his rights under the Eighth Amendment by 18 destroying his dentures and therefore subjecting him to the unnecessary infliction of pain.” (Dkt. 19 No. 8 at 3.) 20 II. Exhaustion of Administrative Remedies 21 A. Legal Standard 22 Pursuant to the Prison Litigation Reform Act (“PLRA”): 23 No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in a jail, prison, or other correctional facility until such 24 25 1 26 The page numbers referenced are those assigned by the court’s CM/ECF system, where applicable. 2 1 administrative remedies as are available are exhausted. 2 42 U.S.C. § 1997e(a). Compliance with the exhaustion requirement is mandatory. Booth v. 3 Churner, 532 U.S. 731, 739, 741 (2001) (holding that prisoners must exhaust their administrative 4 remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even 5 though the latter is unavailable pursuant to the administrative grievance process). 6 The State of California’s prison regulations provide administrative procedures in 7 the form of one informal and three formal levels of review to address plaintiff’s claims. See 15 8 Cal. Code Regs. §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a 9 prisoner has received a “Director’s Level Decision,” or third level review, with respect to his 10 issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All steps must be completed before a civil 11 rights action is filed, unless there is an exception; exhaustion during the pendency of the 12 litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th 13 Cir. 2002). In order to properly exhaust in compliance with the exhaustion requirement of 14 section 1997e(a), a prisoner must comply with applicable procedural rules and time 15 requirements. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). 16 “The level of detail in an administrative grievance necessary to properly exhaust a 17 claim is determined by the prison’s applicable grievance procedures.” Jones v. Bock, 549 U.S. 18 199, 218 (2007); see also McCollum v. CDCR, 647 F.3d 870, 876 (2011) (“Whether an inmate’s 19 claim has been exhausted is determined by reference to the prison’s own grievance requirements, 20 which necessitate that the inmate “describe the problem and the action requested.” (internal 21 quotations and citations omitted). In California, 22 23 24 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. 25 26 Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009); see also McCollum, 647 F.3d at 876 3 1 (“While an inmate need not articulate a precise legal theory, a grievance must alert the prison to 2 the nature of the wrong for which redress is sought.”); see also Jones, 549 U.S. at 219 3 (“[E]xhaustion is not per se inadequate simply because an individual later sued was not named in 4 the grievances.”). 5 The exhaustion requirement is not jurisdictional, but rather is an affirmative 6 defense that may be raised by a defendant in a motion to dismiss pursuant to Federal Rule of 7 Civil Procedure 12(b). See Jones v. Bock, 549 U.S. 199, 216 (2007) (“inmates are not required 8 to specially plead or demonstrate exhaustion in their complaints”); Wyatt v. Terhune, 315 F.3d 9 1108, 1117–19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). The defendant bears 10 the burden of raising and proving the absence of exhaustion. Id. at 1119. If the district court 11 concludes that the prisoner has not exhausted administrative remedies on a claim, “the proper 12 remedy is dismissal of the claim without prejudice.” Wyatt, 315 F.3d at 1120; see also Lira v. 13 Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (“mixed” complaints may proceed on exhausted 14 claims). 15 “In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the 16 court may look beyond the pleadings and decide disputed issues of fact.” Wyatt, 315 F.3d at 17 1119. “I[f] the district court looks beyond the pleadings to a factual record in deciding the 18 motion to dismiss for failure to exhaust – a procedure closely analogous to summary judgment – 19 then the court must assure that [the prisoner] has fair notice of his opportunity to develop a 20 record.” Id. at 1120 n.14. In this case, plaintiff was advised of the requirements to oppose an 21 unenumerated Rule 12(b) motion to dismiss on August 21, 2012, contemporaneously with 22 service of defendant’s motion, and again by order of the court on September 4, 2012. (Dkt. Nos. 23 18-1, 21.) 24 25 26 B. Discussion As discussed, the events alleged in the complaint found to state cognizable claims began on September 8, 2011, when defendant asked plaintiff to withdraw his appeal and first 4 1 denied plaintiff a shower. Plaintiff then commenced this federal action on April 26, 2012. 2 Thus, to satisfy exhaustion requirements, plaintiff must have submitted a grievance or grievances 3 concerning defendant’s alleged conduct at issue in the complaint sometime after September 8, 4 2011 and the process must have been completed by April 26, 2012. 5 According to the sworn declaration of J.D. Lozano, Chief of The Office of 6 Appeals (“OOA”), during the relevant time frame, OOA received and maintained inmate appeals 7 accepted for the third and final level of review in CDCR’s inmate appeals process for all issues 8 except medical issues. (Dkt. No. 18-6, Declaration of J.D. Lozano (“Lozano Decl.”) at ¶ 2.) 9 During the time period from September 1, 2011 through April 26, 2012, plaintiff submitted three 10 11 inmate appeals, two of which were decided by OOA on or before April 26, 2012. (Id. at ¶ 3.) Copies of the appeals decided on or before April 26, 2012 are attached as exhibits; 12 neither submitted during the relevant time frame addresses shower access, broken dentures, or 13 any alleged retaliatory conduct by defendant. (Dkt. Nos. 18-3, 18-4.) Plaintiff alleged in Inmate 14 Appeal CSP-S-11-00969 that defendant sexually harassed him by making inappropriate 15 comments about men’s rectums, as alleged in the complaint. (Dkt. No. 18-3.) Inmate Appeal 16 CSP-S-11-01056 concerns contraband (a $100 bill) confiscated during a search of plaintiff’s cell 17 and contains no reference to any allegations in plaintiff’s complaint. (Dkt. No. 18-4.) 18 S. Cervantes, Appeals Coordinator for the Institutional Appeals Office at CSP- 19 Solano, is responsible for screening inmate appeals at the second level of review, coordinating 20 appeals processing, and maintaining inmate appeals records including a database of appeals that 21 are screened out for non-compliance with proper procedures. (Dkt. No. 18-7, Declaration of S. 22 Cervantes at ¶ 1-2.) S. Cervantes declares in a sworn statement that plaintiff submitted Inmate 23 Appeal CSP-S-12-00619 concerning a property issue to the second level of review. (Id. at ¶ 4.) 24 In Appeal CSP-S-12-00619, plaintiff alleged that defendant damaged his dentures and clock in 25 an act of retaliation. (Dkt. No. 18-5.) Plaintiff signed Inmate Appeal CSP-S-12-00619 on March 26 19, 2012, and it was received by S. Cervantes on April 2, 2012. (Id.) As set forth, however, 5 1 plaintiff did not submit this appeal or any others concerning shower access, dentures, or 2 retaliatory acts by defendant to the third level of review during the relevant time frame. (Lozano 3 Decl. at ¶ 3.) This appeal does not, therefore, satisfy the exhaustion requirement for either of 4 plaintiff’s claims. 5 Several points presented in plaintiff’s first and second oppositions will now be 6 addressed. To begin, plaintiff objects to defendant’s assertion that the events at issue first 7 occurred September 8, 2011.2 (Dkt. No. 19 at 1.) While it is true that the events described in 8 plaintiff’s complaint began on September 1, 2011 when defendant allegedly sexually harassed 9 plaintiff, plaintiff’s allegation of sexual harassment does not state a cognizable claim for a 10 constitutional violation. In other words, defendant’s actionable conduct did not first occur until 11 September 8, 2011 making that the first date on which plaintiff could have begun the exhaustion 12 process for the conduct underlying his First and Eighth Amendment claims. 13 14 Plaintiff asserts that his presentation of Inmate Appeal CSP-S-11-00969 did in fact exhaust his First and Eighth Amendment claims. He argues: 15 [I]n his grievance [CSP-S-11-00969] Plaintiff complained to prison officials that in reprisal to reporting the incident he was being harassed in the related conditions. As the 602 progressed through the various levels of review, plaintiff complained that he was not being allowed to shower.... [¶] Plaintiff complained to prison officials that defendant Solorzano was being deliberate indifferent [sic] to his hygiene needs by refusing to provide access to shower, to “chill” his appeal for reporting the sexual harassment. Prison officials, including defendant Solorzano who reviewed the second level appeal, clearly understood what Plaintiff was complaining about and what relief he was seeking. In each response, prison officials acknowledged plaintiff’s complaints regarding that no reprisal be taken against him for filing his appeal. e.g. trash searches, Harassment, transfer out of building #8, bogus CDC-115. 16 17 18 19 20 21 22 23 It is the nature of plaintiff’s claim, not whether he mentioned a shower or broken denture in his grievance, that is the paramount 24 25 26 2 Actually, plaintiff describes the date as “September 8, 2012,” but the court concludes that this is a typographical error as the plaintiff’s federal complaint was filed in April, 2012. Dkt. No. 1. 6 1 consideration in the exhaustion analysis. 2 Here, prison officials would not have been anymore aware of the ongoing problems about which plaintiff was complaining had he re-started the grievance process each time he was being “harassed” by defendant Solorzano when depriving him showers and trash searching plaintiff’s cell breaking his dentures. 3 4 5 6 (Dkt. No. 19 at 6-7.) 7 As set forth, to properly exhaust administrative remedies, a prisoner must comply 8 with the prison’s policies and procedures governing its administrative process. Woodford, 548 9 U.S. at 90-91. “All steps [in the inmate grievance process] must be completed before a civil 10 rights action is filed....” McKinney, 311 F.3d at 1200. 11 Under CDCR’s regulations it is “[t]he third level of review [that] exhausts 12 administrative remedies” 15 Cal. Code Regs. § 3084.7(d)(3). However, department regulations 13 specifically provide: 14 Administrative remedies shall not be considered exhausted relative to any new issue, information, or person later named by the appellate that was not included in the originally submitted CDCR Form 602 (Rev. 08/09), Inmate/Parolee Appeal, which is incorporated by reference, and addressed through all required levels of administrative review up to and including the third level. 15 16 17 18 15 Cal. Code Regs. § 3084.1(b).3 The referenced “CDCR Form 602 (Rev. 08/09), 19 Inmate/Parolee Appeal” is the form submitted to the appeals coordinator of the institution at the 20 first level of review. See 15 Cal. Code Regs. §§ 3084.2(a)-(c). Accordingly, for any inmate 21 appeal on which plaintiff received a director’s decision at the third level of review, only the 22 issues he set forth in his original submission are properly exhausted. 23 24 Applying this rule, Inmate Appeal CSP-S-11-00969 did not exhaust either of plaintiff’s claims brought under the First and Eighth Amendments. Plaintiff’s original 25 3 26 Review of the administrative history confirms that the quoted language was in effect when plaintiff initiated the inmate appeal at issue. See 15 Cal. Code Regs. § 3084.1 (2011). 7 1 submission of CDCR Form 602 (Rev.08/09) on September 2, 2011 grieved only the incident that 2 occurred the day prior, on September 1, 2011. (Dkt. No. 18-3 at 4-6.) Contrary to plaintiff’s 3 argument in his second opposition (Dkt. No. 22 at 2), his request therein that “no reprisal be 4 taken against plaintiff for filing the grievance” cannot be said to have exhausted conduct that had 5 not yet occurred. It was not until plaintiff’s submission at the third level of review that he wrote, 6 in the section designated for him to express dissatisfaction with the second level decision, that 7 defendant had denied his request for a shower in retaliation for filing the grievance. (Dkt. No. 8 18-3 at 5.) 9 Under these circumstances, defendant has met his burden of raising and proving 10 the absence of exhaustion. Both of plaintiff’s claims must be dismissed without prejudice. See 11 Wyatt, 315 F.3d at 1120. 12 In accordance with the above, IT IS HEREBY RECOMMENDED THAT: 13 1. Defendant’s motion to dismiss (Dkt. No. 18) be GRANTED; 14 2. Plaintiff’s claims brought under the First and Eighth Amendment be 15 dismissed without prejudice; and 16 3. The clerk be directed to close this case. 17 These findings and recommendations are submitted to the United States District 18 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 19 days after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 22 shall be served and filed within fourteen days after service of the objections. The parties are 23 //// 24 //// 25 //// 26 //// 8 1 advised that failure to file objections within the specified time may waive the right to appeal the 2 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: December 14, 2012 4 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 8 8 bart1116.mtd 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9
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