-GSA (PC) Ivory v. Tilton, et al., No. 1:2009cv01272 - Document 75 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 1/24/2012 recommending that 44 MOTION to DISMISS be Granted. Referred to Judge Anthony W. Ishii; Objections to F&R due by 2/27/2012. (Lundstrom, T)
Download PDF
<![CDATA[
-GSA (PC) Ivory v. Tilton, et al. Doc. 75 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORMAN IVORY, 12 Plaintiff, 13 14 1:09-cv-01272-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT SEXTON’S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED (Doc. 44.) v. JAMES E. TILTON, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 16 / 17 18 I. BACKGROUND 19 Norman Ivory (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 20 pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at Pleasant Valley State Prison in 21 Coalinga, California. The events at issue allegedly occurred at Avenal State Prison (“ASP”) in 22 Avenal, California, while Plaintiff was incarcerated there. This action now proceeds on Plaintiff's 23 original Complaint filed on July 20, 2009, against defendant Correctional Officer S. Meraz for use 24 of excessive force in violation of the Eighth Amendment, and defendant Captain M. V. Sexton for 25 retaliation in violation of the First Amendment.1 (Doc. 1.) On May 27, 2011, defendant Sexton 26 (“Defendant”) filed a motion to dismiss the claims against him for failure to exhaust administrative 27 28 1 On August 23, 2010, the Court dismissed all other claims and defendants from this action, based on Plaintiff’s failure to state a claim under § 1983. (Doc. 30.) 1 Dockets.Justia.com 1 remedies before filing suit, and for failure to state a claim upon which relief may be granted against 2 him. (Doc. 44.) On June 24, 2011, Plaintiff filed an opposition to the motion.2 (Doc. 57.) On July 3 1, 2011, Defendant filed a reply to Plaintiff's opposition. (Doc. 58.) Defendant's motion to dismiss 4 is now before the Court. 5 II. STATUTORY EXHAUSTION REQUIREMENT 6 Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that “[n]o action shall 7 be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by 8 a prisoner confined in any jail, prison, or other correctional facility until such administrative 9 remedies as are available are exhausted.” Prisoners are required to exhaust the available 10 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 11 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required 12 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 13 Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies 14 to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002). 15 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 16 defense under which Defendant has the burden of raising and proving the absence of exhaustion. 17 Jones, 549 U.S. at 216, 127 S.Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 18 The failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an 19 unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 20 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) 21 (per curium)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the 22 Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119- 23 20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper 24 remedy is dismissal without prejudice. Id. 25 /// 26 /// 27 2 28 Plaintiff was provided with notice of the requirements for opposing an unenumerated Rule 12(b) motion on January 5, 2011. W yatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003); Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). (Doc. 34.) 2 1 III. SUMMARY OF PLAINTIFF'S ALLEGATIONS 2 Plaintiff was a state prisoner at ASP at the time of the events at issue, and defendant Sexton 3 was a Correctional Captain employed at ASP. Plaintiff alleges as follows in the Complaint.3 4 Plaintiff alleges a pattern of harassment following his attempt to informally resolve prison officials’ 5 failure to comply with the minimum standards for the Jewish Kosher Meal Program, and his 6 submission of a group appeal on the issue. Further, Plaintiff alleges harsh treatment by Officers 7 Valdez, Foucht, and Meraz on January 27, 2009, after he was transferred to Facility 6 following the 8 submission of the group appeal. Plaintiff alleges that immediately prior to his transport to 9 administrative segregation, he overheard Defendant Sexton telling Officers Valdez and Foucht that 10 this ought to teach Plaintiff about challenging them with all of those appeals, and that Plaintiff was 11 lucky they did not kick his teeth in. 12 IV. MOTION TO DISMISS FOR FAILURE TO EXHAUST 13 The Court takes judicial notice of the fact that the California Department of Corrections and 14 Rehabilitation ("CDCR") has an administrative grievance system for prisoner complaints. Cal. Code 15 Regs., tit. 15 § 3084.1 (West 2009). The process is initiated by submitting a CDCR Form 602. Id. 16 at § 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, 17 second formal level, and third formal level, also known as the “Director’s Level.” Id. at § 3084.5. 18 Appeals must be submitted within fifteen working days of the event being appealed, and the process 19 is initiated by submission of the appeal to the informal level, or in some circumstances, the first 20 formal level. Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state 21 prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. 22 Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378 (2006); McKinney, 311 F.3d at 1199-1201. 23 Defendant's Motion 24 Defendant Sexton argues that Plaintiff's claims against him should be dismissed from this 25 action because Plaintiff failed to exhaust his administrative remedies with regard to Plaintiff’s claims 26 against Defendant. Defendant submits evidence that ASP has no record of Plaintiff submitting an 27 28 3 This summary contains the allegations in the Complaint against defendant Sexton and the claims found cognizable by the Court, upon which this case now proceeds, along with background information. 3 1 administrative appeal in 2008 or 2009 claiming that his placement in administrative segregation was 2 the result of retaliation by Defendant or any other prison official. (Declaration of N. Lopez, Doc. 3 44-2 at ¶¶4, 5.) N. Lopez, Appeals Coordinator at ASP, declares that he reviewed the record of 4 appeals filed by Plaintiff in 2008 and 2009 at ASP, and the records of Plaintiff’s appeals screened 5 out in 2008 and 2009 at ASP, and none of the appeals contended that Plaintiff’s placement in 6 administrative segregation was retaliatory. Id. 7 Plaintiff’s Opposition 8 The Court looks to Plaintiff’s opposition filed on June 24, 2011, and Plaintiff’s Complaint 9 filed on July 20, 2009.4 In the Complaint, Plaintiff declares that he has filed numerous appeals 10 relevant to the defendants' conduct. Plaintiff refers to Appeal Log Number 08-02880, "denied by 11 Defendant on April 29, 2009," which he asserts is attached as Exhibit A to the Complaint. 12 (Complaint, Doc. 1 at 9 ¶19.) 13 In his unverified opposition, Plaintiff asserts that he filed an administrative appeal against 14 the defendants to this action complaining about the conditions and actions leading to the present 15 lawsuit. Plaintiff asserts that he did not use Defendant Sexton's name in the appeal because he did 16 not discover Sexton's name until after the 15-day deadline to file the appeal had passed. Plaintiff 17 claims that at least two of his appeals concerning the claims in this action were completed through 18 the Director's Level of review, giving the defendants fair notice of his claims against them. Plaintiff 19 also asserts that he was placed in administrative segregation without a pencil or pen, and that he was 20 under extreme duress because immediately after Plaintiff was placed in administrative segregation, 21 his fiancée suffered an untimely death. 22 Defendant’s Reply 23 Defendant replies that Plaintiff's claim that he exhausted his remedies by filing an 24 administrative appeal is nothing more than vague assertions and non-specific allegations which did 25 not place the prison on notice that any prison official had approved Plaintiff's placement in 26 4 27 28 In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. W yatt, 315 F.3d at 1119-20. Plaintiff signed the Complaint under penalty of perjury. (Doc. 1 at 16, 19.) Therefore, Plaintiff’s opposition to the motion to dismiss is based in part on the evidence in his verified Complaint and its accompanying exhibits. However, Plaintiff’s opposition is not verified and therefore does not contain admissible evidence. 4 1 administrative segregation out of retaliatory motives. Defendant argues that Plaintiff has presented 2 no evidence that Plaintiff ever filed an administrative appeal claiming any retaliation against 3 Plaintiff, other than by Officer Meraz writing a false report. 4 Discussion 5 Plaintiff’s complaint against Defendant Sexton is based on the allegations that on January 6 27, 2009, he was subjected to harsh treatment by Officers Valdez, Foucht, and Meraz, after he was 7 transferred to Facility 6 following the submission of a group appeal, and just before Plaintiff was 8 taken to administrative segregation, Defendant Sexton told Officers Valdez and Foucht that this 9 ought to teach Plaintiff about challenging them with all of those appeals, and that Plaintiff was lucky 10 they did not kick his teeth in. Thus, Plaintiff claims that Defendant Sexton retaliated against him 11 for filing appeals by housing him in administrative segregation. 12 Plaintiff claims that he exhausted his administrative remedies with regard to his claims 13 against Defendant Sexton with his appeal Log Number 08-02880. However, Plaintiff fails to submit 14 any evidence to support this claim. In the Complaint, Plaintiff refers to Exhibit A which he asserts 15 is a copy of the appeal; however, Plaintiff's exhibits to the Complaint do not contain copies of any 16 appeals. Plaintiff also fails to submit any documentary evidence with his opposition. If any of 17 Plaintiff's appeals were completed to the Director's Level, he would have received copies of the 18 Director's Level response. The Court must concur with defendant that Plaintiff has not presented 19 evidence that he submitted any prison appeal in 2009 complaining that Defendant Sexton or any 20 prison official retaliated against him by placing him in administrative segregation. Therefore, 21 Defendant Sexton is entitled to dismissal of the claims against him in this action. 22 V. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 23 Defendant Sexton also argues that Plaintiff's claims against him should be dismissed for 24 failure to state a claim upon which relief may be granted under § 1983. Based on the Court’s finding 25 that Plaintiff did not exhaust the available administrative remedies for his claims against Defendant 26 Sexton prior to filing suit, the Court need not reach Defendant’s other arguments and elects not to 27 do so. See Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 534 (7th Cir. 1999) (vacating judgment 28 and remanding with instructions to dismiss for failure to exhaust in case where district court granted 5 1 summary judgment to defendants on the merits and did not rule on their pending motion for 2 dismissal based on failure to exhaust). 3 VI. CONCLUSION AND RECOMMENDATION 4 Defendant Sexton has met his burden of demonstrating that Plaintiff failed to exhaust his 5 remedies with regard to Plaintiff’s allegations against Defendant Sexton prior to filing suit, in 6 compliance with § 1997e(a). Defendant has shown an absence in the official records of any evidence 7 that Plaintiff filed an inmate appeal pursuant to Title 15 of the California Code of Regulations § 8 3084.1, et seq., concerning his allegations in the complaint against Defendant Sexton in this action. 9 Plaintiff has not submitted evidence of any appeals that satisfy the exhaustion requirement, nor has 10 Plaintiff submitted evidence that he exhausted all of the remedies available to him. Therefore, the 11 Court HEREBY RECOMMENDS that Defendant Sexton’s motion to dismiss, filed May 27, 2011, 12 be GRANTED, and the claims against Defendant Sexton in this action be DISMISSED, based on 13 Plaintiff’s failure to exhaust. 14 These Findings and Recommendations will be submitted to the United States District Court 15 Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within thirty (30) 16 days after being served with a copy of these Findings and Recommendations, any party may file 17 written objections with the Court and serve a copy on all parties. Such a document should be 18 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are 19 advised that failure to file objections within the specified time may waive the right to appeal the 20 order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 23 IT IS SO ORDERED. Dated: 6i0kij January 24, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
