(PC) Dowd v. Yates, No. 1:2007cv01505 - Document 85 (E.D. Cal. 2010)

Court Description: ORDER signed by Magistrate Judge Dennis L. Beck on 12/8/2010 granting nunc pro tunc 71 Motion for Extension of time to file motion to dismiss; disregarding 75 Motion regarding case status as moot; FINDINGS and RECOMMENDATIONS recommending that 73 MOTION to DISMISS filed by S. Meyst be GRANTED. Referred to Judge Oliver W. Wanger; Objections to F&R due by 1/3/2011. (Lundstrom, T)
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(PC) Dowd v. Yates Doc. 85 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 RODNEY LAMONT DOWD, CASE NO. 1:07-CV-01505-OWW-DLB PC Plaintiff, ORDER GRANTING NUNC PRO TUNC MOTION FOR EXTENSION OF TIME TO FILE MOTION TO DISMISS (DOC. 71) 8 9 v. 10 JAMES A. YATES, et al., ORDER DISREGARDING PLAINTIFF’S MOTION REGARDING CASE STATUS AS MOOT (DOC. 75) 11 Defendants. 12 FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANT MEYST’S MOTION TO DISMISS BE GRANTED (DOC. 73) 13 14 15 OBJECTIONS DUE WITHIN TWENTY-ONE DAYS / 16 17 Findings And Recommendation 18 I. Background 19 A. 20 Plaintiff Rodney Lamont Dowd (“Plaintiff”) is a prisoner in the custody of the California Procedural History 21 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 22 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding 23 on Plaintiff’s second amended complaint against Defendants S. Meyst and Defendant 24 Arguerralde1 for violation of the Eighth Amendment. On May 4, 2010, Defendant Meyst filed a 25 motion to dismiss pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of 26 Civil Procedure on the grounds that Plaintiff has failed to exhaust his administrative remedies. 27 1 28 Defendant Arguerralde has not been served in this action. Defendants Defosses, Jenan, McCollum, Teater, and W ard were dismissed from this action pursuant to this Court’s order filed on March 22, 2010. Doc. 70. 1 Dockets.Justia.com 1 Doc. 73, Def. Meyst’s Mot. Dismiss. Plaintiff filed his opposition on May 26, 2010. Doc. 76, 2 Pl.’s Opp’n.2 Defendant filed his reply on June 1, 2010. Doc. 77, Reply. The matter is 3 submitted pursuant to Local Rule 230(l). The Court will first adjudicate Defendant’s motion for 4 extension of time, filed April 6, 2010, and Plaintiff’s motion regarding case status, filed May 24, 5 2010. 6 B. 7 On April 6, 2010, Defendant filed a motion for extension of time to file his motion to Motion For Extension of Time 8 dismiss nunc pro tunc. Doc. 71. The Court finds good cause to grant this motion. It is 9 HEREBY ORDERED that Defendant’s motion for extension of time is granted. 10 C. 11 On May 24, 2010, Plaintiff filed a motion entitled “Request Answer to Past Writ of Motion Regarding Case Status 12 Motion To Dismiss on C/O Defosses Jenan, McCollum, Teater, and Ward Motion To Dismiss.” 13 Plaintiff is requesting a status update regarding whether his case is still pending. As stated 14 previously, Defendants Defosses, Jenan, McCollum, Teater, and Ward were dismissed from this 15 action by order filed on March 22, 2010, for Plaintiff’s failure to exhaust administrative 16 remedies. As of the date of this order, Defendants Meyst and Arguerralde remain in this action. 17 Accordingly, Plaintiff’s motion is DISREGARDED. 18 D. 19 Plaintiff alleges that on August 22, 2007, while housed at Pleasant Valley State Prison Summary of Second Amended Complaint 20 (“PVSP”), Defendant Arguerralde informed Plaintiff that he would be moved to the gymnasium. 21 Plaintiff informed Defendant Arguerralde that he would rather be placed in administrative 22 segregation. Plaintiff alleges that Officer Teater later arrived at Plaintiff’s cell and called for 23 more officers. Officer Defosses arrived, and Officer Teater ordered Officer Bonner, who was at 24 the control booth tower, to open the cell door. Officers Defosses, Jenan, and Arguerralde entered 25 Plaintiff’s cell. Plaintiff alleges that Officers Defosses and Arguerralde then grabbed Plaintiff’s 26 arm, that Officer Defosses slammed Plaintiff on the ground, and that he and Ward sat on 27 2 28 Plaintiff was provided with notice of the requirements for opposing an unenumerated Rule 12(b) motion on February 10, 2009. Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003); Doc. 23. 2 1 Plaintiff’s back. Plaintiff alleges that Officer Jenan handled Plaintiff roughly and that both 2 Officers Teater and Jenan were also complicit in the attack. Plaintiff alleges that Officers Ward 3 and McCollum snatched at Plaintiff, causing Plaintiff to dislocate his shoulder. Plaintiff alleges 4 that Defendant Meyst assisted the other correctional officers during the attack and was complicit 5 in the assault. 6 II. Failure To Exhaust Administrative Remedies 7 A. Legal Standard 8 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 9 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 10 confined in any jail, prison, or other correctional facility until such administrative remedies as are 11 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 12 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney 13 v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the 14 relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 15 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to 16 prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 17 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 18 defense under which defendants have the burden of raising and proving the absence of 19 exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The 20 failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an 21 unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 22 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th 23 Cir. 1998) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative 24 remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Id. at 25 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, 26 the proper remedy is dismissal without prejudice. Id. 27 28 3 1 B. 2 The CDCR has an administrative grievance system for prisoner complaints. Cal. Code Analysis 3 Regs. tit. 15, § 3084.1. The process is initiated by submitting a CDC Form 602. Id. § 3084.2(a). 4 Four levels of appeal are involved, including the informal level, first formal level, second formal 5 level, and third formal level, also known as the “Director’s Level.” Id. § 3084.5. Appeals must 6 be submitted within fifteen working days of the event being appealed, and the process is initiated 7 by submission of the appeal to the informal level, or in some circumstances, the first formal 8 level. Id. §§ 3084.5, 3084.6(c). In order to satisfy § 1997e(a), California state prisoners are 9 required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 10 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always require 11 pursuit of an appeal through the Director’s Level of review. What is required to satisfy 12 exhaustion is a fact specific inquiry, and may be dependent upon prison officials’ response to the 13 appeal. See Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of 14 exceptions to exhaustion requirement from other circuits); Brown v. Valoff, 422 F.3d 926, 935-36 15 (9th Cir. 2005) (“[E]ntirely pointless exhaustion” not required). 16 Defendant contends that this action should be dismissed because Plaintiff failed to 17 exhaust his administrative remedies. Doc. 73, Mem. P. &. A. Support Mot. Dismiss 5:24-25. 18 Defendant contends that Plaintiff did not exhaust his inmate grievance at the Director’s level of 19 review. Id. 5:25-6:3. Defendant further contends that Plaintiff did not attempt to exhaust 20 administrative remedies prior to filing this action. Id. 6:4-9. Defendant submits as evidence in 21 support declarations from N. Grannis, chief of the Inmate Appeals Branch, and G. Duran, appeals 22 coordinator at PVSP. Doc. 73-2, N. Grannis Decl.; Doc. 73-3, G. Duran Decl. 23 A review of the submitted exhibits indicates that Plaintiff submitted grievance No. PVSP- 24 07-02904 regarding this alleged force incident on August 8, 2007. Doc. 73-3, G. Duran Decl., 25 Ex. B. It was re-categorized as a staff complaint and went to first level review on September 11, 26 2007. Id. On October 11, 2007, the response was completed. G. Duran Decl., Ex. C. Plaintiff 27 received his response on October 29, 2007. Id., Ex. B. On November 1, 2007, Plaintiff 28 submitted his grievance to the second level of review. Id., Ex. B. The second level response was 4 1 completed on November 27, 2007, id., Ex. D, and Plaintiff received the response on November 2 29, 2007, id., Ex. B. Plaintiff did not submit his grievance to the Director’s level of review until 3 July 24, 2008. Doc. 73-2, N. Grannis Decl. ¶ 4; Ex. A. The Director’s Level screened out 4 Plaintiff’s grievance on August 13, 2008 as untimely. Id. 5 The Court finds that Defendant Meyst has met his burden of demonstrating Plaintiff did 6 not exhaust his administrative remedies. The burden thus shifts to Plaintiff to demonstrate that 7 he exhausted all administrative remedies as were available. 8 Plaintiff in opposition contends that he was denied the opportunity to properly exhaust his 9 administrative remedies. Pl.’s Opp’n 1-2. Plaintiff contends that he inquired as to what the 10 response was to his grievance at the second level of review, but received no response, which 11 explained his delay in seeking third level review. Id. Plaintiff cites to Brown, 422 F.3d 926, in 12 support. Id. 13 Defendant in reply contends that Plaintiff’s arguments are without merit. Def.’s Reply 2- 14 3. Defendant contends that Plaintiff’s grievance requested three things (1) an investigation; (2) 15 reimbursement for property damage; and (3) an apology. Id. at 3:17-28. Defendant contends that 16 Plaintiff did not receive the latter two and was informed that if he was dissatisfied, he should 17 submit his grievance to the next level of review. Id. Defendant contends that Brown does not 18 support Plaintiff’s argument because he had available remedies at the Director’s Level of review. 19 The Court finds Plaintiff’s arguments unavailing. Plaintiff is not contending that he did 20 not receive the first or second level review responses. Plaintiff had requested further information 21 at the second level of review as to what portion of his grievance had been granted at the first 22 level of review. Having examined the second level response, it is clear what portion of the 23 grievance was granted (i.e., the investigation), and what was not (i.e., the property reimbursement 24 and apology). Plaintiff thus did receive the requested information he asked for in his appeal to 25 the second level of review. Plaintiff does not cite to any case law, statute, or regulation in 26 support of his argument that he is not responsible for exhausting administrative remedies in this 27 instance, and the Court is not aware of any such authority. Because Plaintiff failed to properly 28 exhaust his administrative grievances, the Court recommends dismissal of Defendant Meyst from 5 1 this action without prejudice. Wyatt, 315 F.3d at 1119-20. 2 III. Conclusion 3 Based on the foregoing, it is HEREBY ORDERED that: 4 1. 5 6 dismiss, filed April 6, 2010, is GRANTED; and 2. 7 8 Defendant’s nunc pro tunc motion for extension of time to file a motion to Plaintiff’s motion regarding case status, filed May 24, 2010, is DISREGARDED as moot. Furthermore, it is HEREBY RECOMMENDED that Defendant Meyst’s motion to 9 dismiss pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil 10 Procedure, on the grounds that Plaintiff has failed to exhaust his administrative remedies, should 11 be GRANTED, and Defendant Meyst be DISMISSED from this action without prejudice. 12 These Findings and Recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one 14 (21) days after being served with these Findings and Recommendations, the parties may file 15 written objections with the court. Such a document should be captioned “Objections to 16 Magistrate Judge's Findings and Recommendations.” The parties are advised that failure to file 17 objections within the specified time may waive the right to appeal the District Court's order. 18 Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 19 20 IT IS SO ORDERED. Dated: 3b142a December 8, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 6