(PC) Lanier v. Gonzalez et al, No. 1:2009cv01192 - Document 39 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Defendants' Motion to Dismiss, filed June 26, 2009, be GRANTED, and this action be DISMISSED, without prejudice, based on Plaintiff's failure to exhaust re 1 Prisoner Civil Rights Complaint filed by Ricardo Edwin Lanier and 25 MOTION to DISMISS; Referred to Judge O'Neill; Objections to F&R due by 12/20/2010, signed by Magistrate Judge Gary S. Austin on 11/16/2010. (Martin, S)
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(PC) Lanier v. Gonzalez et al Doc. 39 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO EDWIN LANIER, 12 Plaintiff, 13 14 1:09-cv-01192-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED v. F. GONZALES, WARDEN, et al., (Doc. 25.) 15 Defendants. OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 16 / 17 18 I. BACKGROUND 19 Ricardo Edwin Lanier (“Plaintiff”) is a prisoner proceeding pro se in this civil rights action 20 filed pursuant to 42 U.S.C. § 1983. This action now proceeds with the original Complaint filed by 21 Plaintiff on July 10, 2009, against defendants R. Rodriguez, T. D. Beckner, and L. E. Papillion 22 (“Defendants”), for use of excessive force in violation of the Eighth Amendment.1 On April 30, 23 2010, Defendants filed a motion to dismiss this action under Rule 12(b) for failure to exhaust 24 administrative remedies. (Doc. 25.) On May 11, 2010, Plaintiff filed an opposition to the motion. 25 (Doc. 29.) On May 18, 2010, Defendants filed a reply to Plaintiff's opposition. (Doc. 30.) 26 Defendants' motion is now before the Court. 27 28 1 All other claims and defendants were dismissed from this action by the Court on January 6, 2010, based on Plaintiff’s failure to state a claim. (Doc. 11.) 1 Dockets.Justia.com 1 II. PLAINTIFF’S CLAIMS AND ALLEGATIONS2 2 The events at issue in this action occurred at the California Correctional Institution in 3 Tehachapi, California, where Plaintiff is presently incarcerated. Plaintiff alleges that on May 22, 4 2009, he covered his cell window to protest an earlier cell search in which various items of his 5 personal property were confiscated despite the fact that they were not contraband. Defendant 6 Beckner, a correctional officer, stood outside of Plaintiff’s cell and after the two exchanged heated 7 words, Plaintiff heard footsteps, the tray slot to his door was opened by Defendant Rodriguez, and 8 Defendant Papillion sprayed pepper spray into the cell. Plaintiff complied with orders and was 9 removed from his cell. Defendant Beckner slapped and punched Plaintiff, and tried to provoke him, 10 unsuccessfully. Once Plaintiff was escorted out of the pod and was out of view of other inmates, 11 Defendant Beckner thrust Plaintiff against a wall, which caused a minor contusion on Plaintiff’s 12 upper lip. Defendant Beckner continued to slap and punch Plaintiff as he was escorted outside and 13 to the medical clinic, where he was placed in a holding cell. Plaintiff claims Defendants used 14 excessive physical force against him in violation of the Eighth Amendment. 15 16 III. UNENUMERATED RULE 12(b) MOTION TO DISMISS FOR FAILURE TO EXHAUST 17 Defendants argue that Plaintiff’s allegations against them should be dismissed, because 18 Plaintiff failed to exhaust his administrative remedies. 19 A. 20 Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that “[n]o action Statutory Exhaustion Requirement 21 shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal 22 law, by a prisoner confined in any jail, prison, or other correctional facility until such 23 administrative remedies as are available are exhausted.” Prisoners are required to exhaust the 24 available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 25 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 26 Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief 27 28 2 This summary includes Plaintiff’s claims in the original complaint found cognizable by the Court on December 24, 2009, and Plaintiff’s related allegations, upon which this case now proceeds. (Doc. 9.) 2 1 offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the 2 exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 3 U.S. 516, 532, 122 S.Ct. 983 (2002). 4 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 5 defense under which Defendant has the burden of raising and proving the absence of exhaustion. 6 Jones, 127 S.Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to 7 exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an 8 unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 9 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th 10 Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust administrative 11 remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 12 315 F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative 13 remedies, the proper remedy is dismissal without prejudice. Id. 14 B. 15 The Court takes judicial notice of the fact that the California Department of Corrections CDCR’s Administrative Grievance System 16 and Rehabilitation (“CDCR”) has an administrative grievance system for prisoner complaints. 17 Cal. Code Regs., tit. 15 § 3084.1 (2007). The process is initiated by submitting a CDC Form 18 602. Id. at § 3084.2(a). Appeals must be submitted within fifteen working days of the event 19 being appealed, and the process is initiated by submission of the appeal to the informal level, or 20 in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). Four levels of appeal 21 are involved, including the informal level, first formal level, second formal level, and third 22 formal level, also known as the “Director’s Level.” Id. at § 3084.5. In order to satisfy § 23 1997e(a), California state prisoners are required to use this process to exhaust their claims prior 24 to filing suit. Woodford, 548 U.S. at 85; McKinney v. Carey, 311 F.3d. 1198, 1199-1201 (9th 25 Cir. 2002). 26 C. 27 Defendants argue that Plaintiff failed to exhaust his administrative remedies prior to filing 28 Defendant’s Position suit. Defendants submit evidence that Plaintiff’s Appeal log number CCI-09-00992, which 3 1 concerned Plaintiff's excessive force allegations against the Defendants, was not completed until 2 December 22, 2009, over five months after Plaintiff initiated this case on July 10, 2009. 3 (Declaration of Foston, Doc. 25-1at 2 ¶5, and Exh. 1.) 4 D. Plaintiff’s Opposition 5 Plaintiff acknowledges that Appeal log number CCI-09-00992 was not completed until 6 after he filed the Complaint commencing this action. However, Plaintiff argues that he 7 exhausted his remedies because he took all measures to complete the grievance system when he 8 wrote a letter to the Warden on June 3, 2009, informing the Warden of past problems filing 9 grievances, and requesting the Warden to oversee the processing of his Appeal. Opp'n, Doc. 29, 10 Exh. AA at 1-2. Plaintiff also contends that his remedies were exhausted because the Director's 11 Level Decision of December 22, 2009 was issued before the Complaint was served on the 12 Defendants. 13 E. 14 In their reply, Defendants re-assert their argument that Plaintiff failed to exhaust his 15 Defendants' Reply remedies prior to filing this lawsuit, as required by the Ninth Circuit's rules. 16 F. Discussion 17 There is no dispute that Plaintiff’ filed Appeal log number CCI-09-00992, complaining 18 about the excessive force allegations against Defendants at issue in this action. There is also no 19 dispute that Plaintiff completed the grievance process on December 22, 2009, when the 20 Director’s Level Decision was issued, five months after he filed the complaint commencing this 21 lawsuit on July 10, 2009. Plaintiff’s actions – writing a letter to the Warden and completing the 22 grievance process before the complaint was served on Defendants – are insufficient to 23 demonstrate exhaustion. The PLRA requires that prisoners exhaust their available administrative 24 remedies prior to filing suit, and Plaintiff has not done so. Defendants are entitled to dismissal 25 of this action. 26 IV. 27 28 CONCLUSION AND RECOMMENDATION Defendants have met their burden of demonstrating that Plaintiff failed to exhaust prior to filing suit, pursuant to section 1997e(a). Plaintiff’s Appeal log number CCI-09-00992 was not 4 1 exhausted prior to the filing of this action, and Plaintiff has not submitted evidence of any other 2 appeals that satisfy the exhaustion requirement. Therefore, the Court HEREBY 3 RECOMMENDS Defendants’ motion to dismiss, filed June 26, 2009, be GRANTED, and this 4 action be dismissed, without prejudice, based on Plaintiff’s failure to exhaust. 5 These Findings and Recommendations will be submitted to the United States District 6 Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 7 thirty (30) days after being served with a copy of these Findings and Recommendations, any 8 party may file written objections with the Court and serve a copy on all parties. Such a document 9 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 10 parties are advised that failure to file objections within the specified time may waive the right to 11 appeal the order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 14 IT IS SO ORDERED. Dated: 6i0kij November 16, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5