(PC) Scholes v. Higman et al, No. 1:2008cv01489 - Document 27 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Defendants' 19 MOTION to DISMISS for Failure to Exhaust be Denied; Objection Due Within Thirty Days; Answer to Amended Complaint Due Within Thirty Days, signed by Magistrate Judge Dennis L. Beck on 2/17/2009. Motion referred to Judge Anthony W. Ishii. Objections to F&R due by 3/23/2009. Amended Complaint due by 3/23/2009. (Sondheim, M)
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(PC) Scholes v. Higman et al Doc. 27 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL A. SCHOLES, 10 Plaintiff, 11 12 CASE NO. 1:08-cv-1489 DLB PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO EXHAUST BE DENIED v. ROD HIGMAN, et al., (Doc. 19) 13 Defendants. OBJECTION DUE WITHIN THIRTY DAYS 14 ANSWER TO AMENDED COMPLAINT DUE WITHIN THIRTY DAYS 15 / 16 17 18 Findings and Recommendations on Defendants’ Motion to Dismiss I. Procedural History 19 Plaintiff Michael A. Scholes (“Plaintiff”) is a former state prisoner proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on 21 March 21, 2008. This action is proceeding on Plaintiff’s amended complaint, filed May 21, 2008, 22 against Defendants Rod Higman, Robin Dezember, Ken Clark, and Perlita McGuiness 23 (“Defendants”). On October 19, 2008, defendants Higman, Dezember, and Clark filed a motion to 24 dismiss for failure to exhaust the available administrative remedies. (Doc. 19.) Defendant 25 McGuiness joined the motion to dismiss on October 24, 2008. (Doc. 21). Plaintiff filed an 26 opposition on November 7, 2008, and Defendants filed a reply on November 12, 2008. (Docs. 22, 27 23.) 28 /// 1 Dockets.Justia.com 1 II. Exhaustion Requirement 2 Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be 3 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 4 prisoner confined in any jail, prison, or other correctional facility until such administrative remedies 5 as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the 6 available administrative remedies prior to filing suit. Jones v. Bock, 127 S.Ct. 910, 918-19 (2007); 7 McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless 8 of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. 9 Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all 10 prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002). 11 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 12 defense under which Defendant has the burden of raising and proving the absence of exhaustion. 13 Jones v. Bock, 127 S.Ct. 910, 921 (2007); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 14 The failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an 15 unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 16 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) 17 (per curium)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the 18 Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119- 19 20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper 20 remedy is dismissal without prejudice. Id. 21 III. Defendants’ Motion 22 The California Department of Corrections and Rehabilitation has an administrative grievance 23 system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2008). The process is initiated 24 by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including 25 the informal level, first formal level, second formal level, and third formal level, also known as the 26 “Director’s Level.” Id. at § 3084.5. Appeals must be submitted within fifteen working days of the 27 event being appealed, and the process is initiated by submission of the appeal to the informal level, 28 or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). CDCR also has a 2 1 process which allows inmates with disabilities to request a reasonable modification or 2 accommodation by submitting a CDC Form 1824. Id. at § 3085(a). Inmates may appeal any 3 decision they are dissatisfied with by attaching the 1824 form to a 602 appeal form and submitting 4 it to the second formal level of review. Id. § at 3085(b). In order to satisfy section 1997e(a), 5 California state prisoners are required to use the available process to exhaust their claims prior to 6 filing suit. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2383 (2006); McKinney, 311 F.3d at 7 1199-1201. 8 This action is proceeding on Plaintiff’s allegations that he was denied medical treatment and 9 accommodation after sustaining a tibial fracture to his right leg on March 23, 2006, while housed 10 at California Substance Abuse and Treatment Facility (“CSATF”). Plaintiff alleges that he was also 11 denied treatment in retaliation for seeking intervention by members of the California Legislature. 12 Plaintiff alleges that he was provided with a single x-ray on or about April 5, 2006. On April 10, 13 2006, Plaintiff was released from custody. Plaintiff alleges violations of his First, Eighth and 14 Fourteenth Amendment rights. 15 Defendants argue that Plaintiff never filed an inmate appeal concerning the allegations 16 contained in the complaint. The events giving rise to this action began on March 23, 2006, and 17 Defendants have submitted evidence that the last inmate appeal by Plaintiff was filed and accepted 18 for review on March 14, 2006. (Doc. 19, Hall Decl., ¶4). 19 In his opposition, Plaintiff argues that Defendants have misapplied 42 U.S.C. §1997e(a) in 20 that the section does not apply to persons who have been released from confinement. Plaintiff 21 further argues that Defendants fail to establish that there was an appeal procedure for parolees who 22 discover their injuries after being released, and that there were no administrative remedies available 23 to him. Plaintiff further argues that Defendants used their position of superiority to prevent the 24 Plaintiff from initiating his appeal processes before his release. Finally, Plaintiff argues that the 25 motion is completely frivolous. 26 In reply, Defendants argue that Plaintiff’s argument that he was not a prisoner at the time of 27 filing suit does not recognize the “purpose, reach and applicability” of the PLRA as discussed by the 28 Supreme Court in Booth v. Churner, 532 U.S. 731 (2001) and Porter v. Nussle, 534 U.S. 516 (2002). 3 1 Defendants further argue that administrative remedies were available to Plaintiff as a parolee. 2 Section 1997e(a) provides that “[n]o action shall be brought with respect to prison conditions 3 under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or 4 other correctional facility until such administrative remedies as are available are exhausted.” 42 5 U.S.C. § 1997e(a). “‘[P]risoner’ means any person incarcerated or detained in any facility who is 6 accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or 7 the terms and conditions of parole, probation, pretrial release, or diversionary program.” 42 U.S.C. 8 § 1997e(h). 9 “[I]f the language of a statute is clear, we look no further than that language in determining 10 the statute’s meaning,” unless “what seems to be the plain meaning of the statute . . . lead[s] to 11 absurd or impracticable consequences.” Seattle-First Nat’l Bank v. Conaway, 98 F.3d 1195, 1197 12 (9th Cir. 1996) (internal quotations and citations omitted). Here, it is clear that the section 1997e(a) 13 exhaustion requirement applies to suits brought by “any person incarcerated or detained”. Plaintiff 14 filed this lawsuit after he was released from incarceration. The Court rejects Defendants’ assertion 15 that it should look to the traditional principles of administrative exhaustion in order to extend the 16 application of the PLRA to capture persons who are released on parole. In Booth, the Supreme Court 17 held that exhaustion was mandatory even if the prisoner was seeking money damages or other relief 18 not available through the administrative process. In Porter, the Supreme Court held that section 19 1997e(a) was enacted to reduce the quantity of inmate suits and to improve the quality of those suits. 20 These cases delineate the benefits attendant to administrative exhaustion; however, neither case can 21 be- nor should be - read to suggest that these benefits justify a broadening of the definition of 22 “prisoner” under 1997e(h) beyond its plain meaning. 23 Further, the case cited by Plaintiff, Greig v. Goord, 169 F. 3d 165 (2nd Cir. 1999) is directly 24 on point. In Grieg, the Second Circuit held that litigants who file after they are released from 25 custody are no longer “prisoners” for purposes of section 1997e(a), and that such litigants are not 26 required to satisfy the exhaustion requirements of the provision. (Id., at 167). The Court is 27 unpersuaded by Defendants’ argument that by refraining from filing a timely grievance, a parolee 28 can circumvent the requirements of the PLRA. It is not the role of this Court to change the clear and 4 1 plain meaning of a statute simply to avoid such a circumstance from occurring. 2 Finally, because the Court finds that the exhaustion requirements under section 1997e(a) do 3 not apply to formerly incarcerated persons, the Court need not address defendants’ further argument 4 that administrative remedies are available to parolees. 5 IV. Conclusion 6 The Court finds Defendants’ motion entirely without merit and accordingly, the Court 7 HEREBY RECOMMENDS that the motion to dismiss for failure to exhaust, filed October 9, 2008, 8 be DENIED. Defendants are HEREBY ORDERED to file an answer to Plaintiff’s amended 9 complaint within thirty (30) days of service of this order. 10 These Findings and Recommendations will be submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 12 days after being served with these Findings and Recommendations, the parties may file written 13 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendations.” The parties are advised that failure to file objections within the 15 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 16 1153 (9th Cir. 1991). 17 18 19 IT IS SO ORDERED. Dated: 3b142a February 17, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 5
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