(PC) Miller v. California State Prison et al, No. 1:2008cv00234 - Document 65 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Defendants' 60 Motion to Dismiss for Failure to Exhaust be Granted; Objections Due Within Thirty Days signed by Magistrate Judge Sandra M. Snyder on 7/27/2009. Referred to Judge Oliver W. Wanger. Objections to F&R due by 8/31/2009. (Sant Agata, S)
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(PC) Miller v. California State Prison et al Doc. 65 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ERNEST MILLER, CASE NO. 1:08-cv-00234-OWW-SMS PC 10 Plaintiff, 11 12 FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED v. CALIFORNIA STATE PRISON, et al., (Doc. 60) 13 Defendants. OBJECTIONS DUE WITHIN THIRTY DAYS 14 / 15 Defendants’ Motion to Dismiss for Failure to Exhaust 16 I. Background 17 Plaintiff Ernest Miller, a state prisoner proceeding pro se and in forma pauperis, filed this 18 civil rights action pursuant to 42 U.S.C. § 1983 on February 15, 2008. The action is proceeding on 19 Plaintiff’s second amended complaint, filed September 15, 2008, against Defendant Rodriguez for 20 interference with Plaintiff’s mail and for retaliation, in violation of the First Amendment; against 21 Defendants Vikjord, Hernandez, Price, Freshcura, and Brandon for withholding Plaintiff’s outgoing 22 mail in violation of the First Amendment; against Defendants Vikjord, Hernandez, and Price for 23 retaliation in violation of the First Amendment; and against all six named defendants for denial of 24 equal protection in violation of the Fourteenth Amendment. 25 /// 26 /// 27 /// 28 1 Dockets.Justia.com 1 On June 26, 2009, Defendants filed a motion to dismiss for failure to exhaust, pursuant to 2 the unenumerated portion of Federal Rule of Civil Procedure 12(b). Plaintiff filed an opposition on 3 July 9, 2009, and Defendants filed a reply on July 15, 2009.1 Local Rule 78-230(m). 4 II. Statutory Exhaustion Requirement 5 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 6 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 7 confined in any jail, prison, or other correctional facility until such administrative remedies as are 8 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 9 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 10 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required 11 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 12 Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies 13 to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002). 14 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 15 defense under which Defendants have the burden of raising and proving the absence of exhaustion. 16 Jones, 127 S.Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to 17 exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an unenumerated 18 Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza 19 v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). 20 In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look 21 beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the Court 22 concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is 23 dismissal without prejudice. Id. 24 III. Discussion 25 The California Department of Corrections and Rehabilitation has an administrative grievance 26 system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2009). The process is initiated 27 1 28 Plaintiff was provided with notice of the requirements for opposing an unenumerated Rule 12(b) motion on January 7, 2009. Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). (Doc. 38.) 2 1 by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including 2 the informal level, first formal level, second formal level, and third formal level, also known as the 3 “Director’s Level.” Id. at § 3084.5. Appeals must be submitted within fifteen working days of the 4 event being appealed, and the process is initiated by submission of the appeal to the informal level, 5 or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). In order to satisfy 6 section 1997e(a), California state prisoners are required to use this process to exhaust their claims 7 prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378 (2006); McKinney, 311 8 F.3d at 1199-1201. 9 Defendants move for dismissal of the claims against them on the ground that Plaintiff did not 10 exhaust. Defendants submit evidence that Plaintiff filed appeal log number COR-07-04342 against 11 Defendant Rodriguez on September 13, 2007, grieving property issues and seeking the removal of 12 Defendant from his position for discrimination and fraud. (Doc. 61-2, Jones Dec., ¶¶5-7.) That 13 appeal was exhausted via denial at the third and final level of review on March 6, 2008, after this 14 suit was filed. (Doc. 61-3, Grannis Dec., ¶¶4-6.) No other appeals involving the Defendants and 15 the claims against them in this action were filed. (Jones Dec.,¶¶5-7; Grannis Dec.¶¶4-6.) 16 In opposition, Plaintiff argues that he filed an appeal concerning mail tampering that was 17 completed through the second level of review, and returned to him on May 11, 2007. (Doc. 63, 18 Opp., p. 1.) On May 12, 2007, Plaintiff was moved to another building, and his property, apparently 19 including the appeal, was taken and never returned. (Id.) In addition, Plaintiff cites to appeal log 20 number 07-04342 as evidence of exhaustion. (Id.) 21 Plaintiff’s claims in this action arise from events which occurred while Plaintiff was 22 incarcerated at California State Prison-Corcoran. Specifically, Plaintiff alleges that on September 23 7, 2007, Defendant Rodriguez confiscated his property and told him he had nothing coming in terms 24 of packages or mail because he testified against officers at High Desert State Prison, and that from 25 August 2007 through February 2008, Defendants Vikjord, Hernandez, Price, Frescura, and Brandon 26 withheld his outgoing mail. (Doc. 28, 2nd Amend. Comp., § IV.) Plaintiff also alleges that guards 27 on the Corcoran SHU yard do not like African-American prisoners, and during the last week of 28 August 2007, Defendants Vikjord, Hernandez, and Price stated in front of other prisoners, 3 1 “Prisoner/Nigger is a P/C - protective custody - rat [because] he testified on correctional officers at 2 H.D.S.P.”, and he gets no mail or packages. (Id.) 3 Plaintiff’s vague reference to an appeal that was apparently lost during a building move in 4 May 2007 is not sufficient to demonstrate exhaustion. First, Plaintiff’s claims arose between August 5 2007 and February 2008, making it impossible for a May 2007 appeal to have grieved the conduct 6 at issue in this action. Further, even had the appeal been submitted during a relevant time period, 7 Plaintiff fails to specify in his opposition what facts or misconduct was raised in the appeal, which 8 precludes the Court from determining what claims the appeal sufficiently grieved. Plaintiff also fails 9 to offer any explanation for his failure to obtain a copy from the appeals office or otherwise take 10 steps that would have allowed him to submit the appeal to the final level of review. 11 Finally, log number 07-04342, submitted on September 13, 2007, complained about property 12 issues involving Defendant Rodriguez. “[T]he primary purpose of a grievance is to notify the prison 13 of a problem, and facilitate its resolution.” Griffin v. Arpaio, 5557 F.3d 1117, 1120 (9th Cir. 2009). 14 In the absence of greater specificity required by the applicable regulations, a grievance is sufficient 15 “‘if it alerts the prison to the nature of the wrong for which redress is sought.’” Id. (quoting Strong 16 v. David, 297 F.3d 646, 650 (7th Cir. 2002)). In California, inmates are required to describe the 17 problem and the action requested. Cal. Code Regs., tit. 15 § 3084.2(a) (West 2009). 18 In submitting the appeal to the first level of review, Plaintiff wrote, “All due to racial 19 discrimination,” and the appeal responses acknowledge Plaintiff’s reference to discrimination. 20 However, because the Director’s Level decision was not issued until March 6, 2008, to the extent 21 the appeal sufficiently grieved Plaintiff’s claims against Defendant Rodriguez for interference with 22 mail and racial discrimination, the appeal was not exhausted prior to the filing of this suit. Jones, 23 549 U.S. at 211; McKinney, 311 F.3d at 1199-1201. In addition, the appeal did not exhaust 24 Plaintiff’s other claims in this action. Defendants are entitled to dismissal of this action. 25 IV. Conclusion and Recommendation 26 Defendants have met their burden of demonstrating that Plaintiff failed to exhaust prior to 27 filing suit, in compliance with section 1997e(a). Appeal log number 07-04342 was not exhausted 28 prior to the filing of this action, and Plaintiff has not submitted evidence of any other appeals that 4 1 satisfy the exhaustion requirement. Therefore, the Court HEREBY RECOMMENDS Defendants’ 2 motion to dismiss, filed June 26, 2009, be GRANTED, and this action be dismissed, without 3 prejudice, based on Plaintiff’s failure to exhaust. 4 These Findings and Recommendations will be submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 6 days after being served with these Findings and Recommendations, the parties may file written 7 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 8 Findings and Recommendations.” The parties are advised that failure to file objections within the 9 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 10 1153 (9th Cir. 1991). 11 12 IT IS SO ORDERED. 13 Dated: icido3 July 27, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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