McNeal v. Rush et al, No. 5:2011cv02798 - Document 66 (N.D. Cal. 2012)
Court Description: ORDER GRANTING MOTION TO DISMISS; ADDRESSING PENDING MOTIONS. For the foregoing reasons, Defendants Rush and Spencer's motion to dismiss the complaint for failure to exhaust administrative remedies is GRANTED. This action is DISMISSED without pr ejudice to Plaintiff refiling after all available administrative remedies have been properly exhausted. Motions terminated: 63 MOTION for Extension of Time to File Response/Reply as to 59 Opposition/Response to Motion filed by Vernon Wayne McNeal, Jr., 45 MOTION to Produce filed by Vernon Wayne McNeal, Jr., 52 MOTION to amend money reward filed by Vernon Wayne McNeal, Jr., 26 MOTION to Dismiss Defendant's Notice of Motion and Motion to Dismiss filed by J. Rush, 55 MOTION for Leave to File filed by Vernon Wayne McNeal, Jr., 46 MOTION to Immediately serve other defendant filed by Vernon Wayne McNeal, Jr. Signed by Judge Edward J. Davila on 9/11/2012. (ecg, COURT STAFF) (Filed on 9/12/2012)
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McNeal v. Rush et al Doc. 66 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 VERNON WAYNE MCNEAL, JR., 11 Plaintiff, 12 vs. 13 14 J. RUSH, et al., Defendants. 15 16 No. C 11-02798 E ) ) ) ) ) ) ) ) ) ) ) ) 17 18 19 20 21 22 23 24 25 26 27 1 Defendant O. Spencer was served on July 19, 2012, (see Docket No. 62), after his proper name was ascertained and summons was reissued, (see Docket No. 42). 28 2 Although Plaintiff’s opposition was filed after the deadline of May 17, 2012, in the interest of justice the Court will consider the brief timely filed as it was signed May 12, 2012. Order Granting Motion to Dismiss; Addressing Pending Motions G:\PRO-SE\SJ.EJD\CR.11\02798McNeal_grant-mtd.wpd 1 Dockets.Justia.com DISCUSSION 1 2 A. Statement of Facts 3 Plaintiff filed a complaint on June 8, 2011, naming as defendants Officers J. Rush 4 and O. Spencer. (Compl. at 2-3.) Plaintiff alleged that he was injured during an incident 5 with an allegedly hostile cellmate on September 14, 2010. The altercation resulted in “a 6 piece of [Plaintiff’s] ear com[ing] off” as well as injuries to his left eye and lips, and 7 “abrasions, scratches, and lumps” on his body. (Compl. Attach., CDC 602, Nov. 2, 8 2010.) Plaintiff claims that when he approached Defendants Rush and Spencer a few 9 days before the altercation and notified them that he and the cellmate were “antisocial 10 [and] not compatible” and that he feared for his safety and security, they acted with 11 “deliberate indifference” by failing to take reasonable measures to protect him. (Id.) In 12 his complaint, Plaintiff checked the box indicating that he appealed the matter to the 13 highest level of appeal available to him. (Id. at 2.) On October 21, 2011, the Court issued an order of service identifying an Eighth 14 15 Amendment claim for Defendants’ failure to take reasonable measures to protect Plaintiff 16 from violence at the hands of other prisoners. (Docket No. 10.) 17 B. 18 Standard of Review The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e 19 to provide that “[n]o action shall be brought with respect to prison conditions under [42 20 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or 21 other correctional facility until such administrative remedies as are available are 22 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and no longer left to the 23 discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth 24 v. Churner, 532 U.S. 731, 739 (2001)). “Prisoners must now exhaust all ‘available’ 25 remedies, not just those that meet federal standards.” Id. Even when the relief sought 26 cannot be granted by the administrative process, i.e., monetary damages, a prisoner must 27 still exhaust administrative remedies. Id. at 85-86 (citing Booth, 532 U.S. at 734). 28 The PLRA’s exhaustion requirement requires “proper exhaustion” of available Order Granting Motion to Dismiss; Addressing Pending Motions G:\PRO-SE\SJ.EJD\CR.11\02798McNeal_grant-mtd.wpd 2 1 administrative remedies. Id. at 93. This requirement cannot be satisfied “by filing an 2 untimely or otherwise procedurally defective administrative grievance or appeal.” Id. at 3 84. “The text of 42 U.S.C. § 1997e(a) strongly suggests that the PLRA uses the term 4 ‘exhausted’ to mean what the term means in administrative law, where exhaustion means 5 proper exhaustion.” Id. at 92. Therefore, the PLRA exhaustion requirement requires 6 proper exhaustion. Id. “Proper exhaustion demands compliance with an agency’s 7 deadlines and other critical procedural rules because no adjudicative system can function 8 effectively without imposing some orderly structure on the course of its proceedings.” Id. 9 at 90-91 (footnote omitted). A prisoner must complete the administrative review process 10 in accordance with the applicable procedural rules, including deadlines, as a precondition 11 to bringing suit in federal court. See id. at 87; see also Johnson v. Meadows, 418 F.3d 12 1152, 1159 (11th Cir. 2005) (holding that, to exhaust remedies, a prisoner must file 13 appeals in the place, and at the time, the prison's administrative rules require); Ross v. 14 County of Bernalillo, 365 F.3d 1181, 1185-86 (10th Cir. 2005) (same). 15 The California Department of Corrections and Rehabilitation (“CDCR”) provides 16 its inmates and parolees the right to appeal administratively “any departmental decision, 17 action, condition, or policy which they can demonstrate as having an adverse effect upon 18 their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the right 19 to file administrative appeals alleging misconduct by correctional officers. See id. § 20 3084.1(e). In order to exhaust available administrative remedies within this system, a 21 prisoner must submit his complaint on CDCR Form 602 (referred to as a “602”) and 22 proceed through several levels of appeal: (1) informal level grievance filed directly with 23 any correctional staff member, (2) first formal level appeal filed with one of the 24 institution's appeal coordinators, (3) second formal level appeal filed with the institution 25 head or designee, and (4) third formal level appeal filed with the CDCR director or 26 designee. Id. § 3084.5; Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 2009); Barry 27 v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the administrative 28 remedies exhaustion requirement under § 1997e(a). Barry, 985 F. Supp. at 1237-38. Order Granting Motion to Dismiss; Addressing Pending Motions G:\PRO-SE\SJ.EJD\CR.11\02798McNeal_grant-mtd.wpd 3 Nonexhaustion under § 1997e(a) is an affirmative defense. Jones v. Bock, 1 2 549 U.S. 199, 211 (2007); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 3 Defendants have the burden of raising and proving the absence of exhaustion, and 4 inmates are not required to specifically plead or demonstrate exhaustion in their 5 complaints. Jones, 549 U.S. at 215-17. As there can be no absence of exhaustion unless 6 some relief remains available, a movant claiming lack of exhaustion must demonstrate 7 that pertinent relief remained available, whether at unexhausted levels or through 8 awaiting the results of the relief already granted as a result of that process. Brown v. 9 Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005). A nonexhaustion claim should be raised in an unenumerated Rule 12(b) motion 10 11 rather than in a motion for summary judgment. Wyatt, 315 F.3d at 1119. In deciding 12 such a motion – a motion to dismiss for failure to exhaust nonjudicial remedies – the 13 court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. 14 If the court concludes that the prisoner has not exhausted nonjudicial remedies, the proper 15 remedy is dismissal without prejudice. Id. at 1120. 16 C. 17 Analysis Defendants contend that Plaintiff failed to properly exhaust the claims raised in 18 his complaint as required by the PLRA. (Mot. to Dismiss at 2.) Although Plaintiff 19 alleges in his complaint that he presented his claim for review through the highest level 20 available to him, Defendants argue that Plaintiff never presented an appeal at the formal 21 level after his appeal was screened out at the informal level. (Id.) Instead, he bypassed 22 the prison’s formal review levels and sent the rejected appeal directly to the third level 23 review, where the appeal was again screened out. (Id.) 24 In support of their motion, Defendants submit the declaration of T. Puget, who is 25 the Appeals Coordinator at PBSP, in which he states that he conducted a search of all 26 grievances filed by Plaintiff. (Decl. Puget at ¶¶ 10 and 11.) Mr. Puget determined that 27 Plaintiff submitted thirteen grievances, five of which were accepted, assigned a log 28 number and assigned for review. (Id.) In response to Plaintiff’s allegation that he filed a Order Granting Motion to Dismiss; Addressing Pending Motions G:\PRO-SE\SJ.EJD\CR.11\02798McNeal_grant-mtd.wpd 4 1 formal appeal on November 2, 2010, Mr. Puget provides a copy of CDC Form 695 with 2 no log number, which states that Plaintiff’s appeal was screened out because it “cannot be 3 understood or is obscured by pointless verbiage or voluminous unrelated documentation.” 4 (Id., Ex. C.) Plaintiff was further advised that the “appeal cannot be processed as written” 5 and that “[i]f [Plaintiff] wish[ed] to file a staff complaint, [to] remove the CDCR-115 6 portion of the appeal and return the appeal to the appeals office for processing. Basically, 7 sep[a]rate [his] appeal issues and refile the appeals.” (Id.) Defendant contends that there 8 is no record of Plaintiff pursuing any further administrative remedies with respect to this 9 appeal. (Mot. at 4.) 10 Defendants also provide a declaration from D. Foston, the Chief of the Office of 11 Appeals, in which he states that the Office of Appeals for third-level received one appeal 12 from Plaintiff at or around the time Plaintiff claims he sent an appeal to his office, i.e., on 13 November 16, 2010. (Decl. Foston at ¶ 7.) According to their records, the appeal was 14 screened out with the following disposition: “Rejected Follow Instructions Given on CDC 15 695 Appeal Rejected/Withdrawn/Cancelled.” (Id. at ¶ 8; Ex. A.) According to Mr. 16 Foston, this means that the appeal was rejected because Plaintiff failed to comply with the 17 instructions provided by the prison institution to obtain lower-level review before 18 submitting the matter to the third-level review. (Id.) 19 A review of the complaint shows that Plaintiff submitted an appeal at the informal 20 level on October 14, 2010, “about [his] situation and lawsuit for [his] defense.” (Compl. 21 at 2.) Plaintiff then submitted an appeal to the first level of review on November 2, 22 2010, for which he received a “CDC 695” on November 16, 2010, with no log number. 23 (Id.) Plaintiff provides no information regarding the second formal level of review. (Id.) 24 With respect to the third level of review, Plaintiff states that he sent an appeal to the 25 “chief appeals in Sacramento” who sent him a response “stating rejection with no log 26 number.” (Id.) These facts are consistent with the information provided by Defendants. 27 28 In opposition, Plaintiff does not dispute the facts set forth above. Rather, he asserts that his appeal was wrongfully screened out at the informal level, and that he Order Granting Motion to Dismiss; Addressing Pending Motions G:\PRO-SE\SJ.EJD\CR.11\02798McNeal_grant-mtd.wpd 5 1 should be excused from exhaustion. (Oppo. at 21.) If prison officials improperly screen 2 out an inmate’s appeals, the inmate cannot properly complete the grievance process, and 3 thus, administrative remedies are unavailable. Sapp v. Kimbrell, 623 F.3d 813, 822-23 4 (9th Cir. 2010).3 To satisfy this exception to exhaustion, an inmate must show: “(1) that 5 he actually filed a grievance or grievances that, if pursued through all levels of 6 administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue 7 in federal court, and (2) that prison officials screened his grievance or grievances for 8 reasons inconsistent with or unsupported by applicable regulations.” Id. at 823-24. Here, 9 Plaintiff fails to show the he meets either criteria for the exception to apply. The notice to 10 Plaintiff regarding his informal appeal advised him that his appeal was being screened out 11 because it “cannot be understood or is obscured by pointless verbiage or voluminous 12 unrelated documentation” under California Code of Regulations 3084(c). (Decl. Puget, 13 Ex. C.) Plaintiff was further advised that the “appeal cannot be processed as written” and 14 that “[i]f [Plaintiff] wish[ed] to file a staff complaint, [to] remove the CDCR-115 portion 15 of the appeal and return the appeal to the appeals office for processing. Basically, 16 sep[a]rate your appeal issues and refile the appeals.” (Id.) This language was clear notice 17 to Plaintiff that administrative relief remained available if he filed an appeal in 18 compliance with regulations. Accordingly, Plaintiff is not entitled to the exception to 19 exhaustion. Defendants have demonstrated that Plaintiff failed to properly exhaust his 20 administrative remedies at the time he filed the instant complaint. See Ngo, 548 U.S. at 21 84. Because Plaintiff failed to exhaust his administrative remedies with respect to the 22 23 claims presented in the complaint, Defendants’ motion to dismiss, (Docket No. 26), is 24 25 26 27 28 3 Sapp left open the possibility that exhaustion may also be excused where “repeated rejections of an inmate’s grievances at the screening stage give rise to a reasonable good faith belief that administrative remedies are effectively unavailable” or where draconian and complex prison procedural requirements render administrative remedies effectively unavailable. Sapp, 623 F.3d at 826-27. Sapp also explicitly declined to address whether the PLRA is subject to an equitable exception to exhaustion. Id. at 827. Order Granting Motion to Dismiss; Addressing Pending Motions G:\PRO-SE\SJ.EJD\CR.11\02798McNeal_grant-mtd.wpd 6 1 GRANTED. See 42 U.S.C. § 1997e(a). 2 C. 3 Pending Motions In light of the dismissal of this action, Plaintiff’s motion to produce discovery, 4 (Docket No. 45), motion to amend money reward, (Docket No. 52), motion for leave to 5 file state claims, (Docket No. 55), and motion for extension of time to file response, 6 (Docket No. 63), are DENIED as moot. 7 8 Plaintiff’s motion to serve Defendant Spencer, (Docket No. 46), is DENIED as moot as Defendant Spencer has since appeared in this action. 9 CONCLUSION 10 11 For the foregoing reasons, Defendants Rush and Spencer’s motion to dismiss the 12 complaint for failure to exhaust administrative remedies is GRANTED. This action is 13 DISMISSED without prejudice to Plaintiff refiling after all available administrative 14 remedies have been properly exhausted. Wyatt, 315 F.3d at 1120. 15 This motion terminates Docket Nos. 26, 45, 46, 52, 55 and 63. 16 17 DATED: 9/11/2012 EDWARD J. DAVILA United States District Judge 18 19 20 21 22 23 24 25 26 27 28 Order Granting Motion to Dismiss; Addressing Pending Motions 02798McNeal_grant-mtd.wpd 7 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA VERNON WAYNE MCNEAL, JR., Case Number: CV11-02798 EJD Plaintiff, CERTIFICATE OF SERVICE v. J. RUSH, et al., Defendants. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 9/12/2012 That on , I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Vernon Wayne McNeal V-41094 CCI - Tehachapi State Prison P. O. Box 1906 Tehachapi, CA 93581 Dated: 9/12/2012 Richard W. Wieking, Clerk /s/ By: Elizabeth Garcia, Deputy Clerk
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