(PC) Shepard v. Cohen et al, No. 1:2009cv01628 - Document 28 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Granting Unenumerated 12(b) 17 Motion for Failure to Exhaust Administrative Remedies and Recommending Dismissal of Action without Prejudice signed by Magistrate Judge Gerald B. Cohn on 01/25/2011. Referred to Judge Wanger; Objections to F&R due by 2/28/2011. (Flores, E)
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(PC) Shepard v. Cohen et al Doc. 28 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LAMONT SHEPARD, 10 11 12 Plaintiff, v. COHEN, et al., 13 1:09-cv-01628-OWW-GBC (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING UNENUMERATED 12(b) MOTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND RECOMMENDING DISMISSAL OF ACTION WITHOUT PREJUDICE Defendants. 14 / (Doc. 17) 15 I. Procedural History and Facts 16 Lamont Shepard (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 17 this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s 18 original complaint, filed September 15, 2009, against Defendants Cohen, Lopez, Campbell, Dean 19 and Jane Doe (“Defendants”) for the involuntary administration of anti-psychotic medication, in 20 violation of the Due Process Clause of the Fourteenth Amendment. On August 11, 2010, Defendants 21 filed an unenumerated 12(b) motion to dismiss the action due to the Plaintiff’s failure to exhaust 22 administrative remedies. 23 Plaintiff’s administrative appeal was submitted on December 14, 2008. (Doc. 18 at p. 2; 24 Doc. 17 at Ex. A). The administrative appeal was partially granted at the first formal level on 25 February 23, 2009. (Doc. 17 at p. 4; Doc. 17 at Ex. A). Plaintiff’s second formal level appeal was 26 denied on May 7, 2009. (Doc. 17 at p. 4; Doc. 17 at Ex. A). Plaintiff’s third level (also known as 27 the “Director’s Level”) appeal was received on May 26, 2009. (Doc. 18 at p. 2). Plaintiff filed the 28 1 Dockets.Justia.com 1 action on September 15, 2009. (Doc. 1). As of August 4, 2010, (the declaration date from the Office 2 of Third Level Appeals) the third level appeal was still pending. (Doc. 17 at p. 4; Doc. 17 at Ex. A). 3 4 II. Exhaustion Requirement 5 Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be 6 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 7 prisoner confined in any jail, prison, or other correctional facility until such administrative remedies 8 as are available are exhausted.” 42 U.S.C. § 1997e(a). In order to satisfy section 1997e(a), 9 California state prisoners are required to use the available process to exhaust their claims prior to 10 filing suit. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). “[E]xhaustion is 11 mandatory under the PLRA and . . . unexhausted claims cannot be brought in court.” Jones v. Bock, 12 549 U.S. 199, 211 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524). “All ‘available’ remedies 13 must now be exhausted; those remedies need not meet federal standards, nor must they be ‘plain, 14 speedy, and effective.’” Porter, 534 U.S. at 524 (quoting Booth v. Churner, 532 U.S. 731, 739 n.5). 15 The Court must dismiss a case without prejudice even when there is exhaustion while the suit is 16 pending. Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). 17 Exhaustion is required regardless of the relief sought by the prisoner. Booth v. Churner, 532 18 U.S. 731, 741 (2001). A prisoner must “must use all steps the prison holds out, enabling the prison 19 to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009); see also 20 Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). A prisoner’s concession to non-exhaustion is 21 valid grounds for dismissal so long as no exception to exhaustion applies. 42 U.S.C. § 1997e(a); 22 Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). 23 California Department of Corrections and Rehabilitation has an administrative grievance 24 system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2009); see also Woodford v. Ngo, 25 548 U.S. 81, 86. The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Four 26 levels of appeal are involved, including the informal level, first formal level, second formal level, 27 and third formal level (the “Director's Level”). Id. at § 3084.5. Appeals must be submitted within 28 fifteen working days of the event being appealed, and the process is initiated by submission of the 2 1 appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 2 3084.6(c). Director’s Level responses are to be completed within sixty working days, and the time 3 limit commences upon receipt of the appeal by the appeals coordinator. Id. at §§ 3084.6(a), (b)(4) 4 (2009).1 Weekends and state holidays do not constitute working days. Id. at § 4003(j)(2). There 5 are also exceptions to the sixty working day requirement in the event of: 6 (A) Unavailability of the appellant, or staff or inmate witnesses. 7 (B) Complexity of the decision, action, or policy. 8 (C) Necessary involvement of other agencies or jurisdictions. 9 Id. at § 3084.6(b)(5). For an “exceptional delay” that “prevents completion of the review within 10 specified time limits,” the Director’s Level appeal is exempted from the requirement of notifying the 11 appellant of the reasons for the delay and the estimated completion date. Id. at § 3084.6(b)(6). 12 Sixty working days had passed in August 2009 and Plaintiff filed his complaint in September 13 2009. Since the Director’s Level appeal was received, over a year has passed with the appeal still 14 pending. In the declaration of J. Walker, the Chief of the Office of Third Level Appeals-Health Care 15 (OTLA-HC)), Walker states: “Although the OTLA-HC works hard to decide appeals in a timely 16 fashion, the large volume of appeals makes that task difficult. Mr. Shepard’s appeal will be decided 17 by the OTLA-HC as quickly as possible.” (Doc. 17 at Ex. A). 18 Plaintiff argues that the exhaustion requirement is satisfied (or that a prisoner is excused from 19 exhausting administrative remedies) if a prisoner files a grievance and receives no response within 20 the time allotted under sections 3084.6(a) and (b)(4) of the grievance procedure.2 In Brown v. Valoff, 21 22 23 24 25 26 27 28 1 Effective as of January 2011, the applicable language was recently amended and moved to tit. 15 §§ 3084.8(a), (c)(3). Although the Court is applying the version of the Code that was in effect at the time when Plaintiff filed the complaint, the Court notes that the new version is substantively the same as the previous version. 2 This argument has been explored by various courts. See e.g., Hardney v. Carey, No. Civ. S-04-1897LKK-GGH, 2006 W L 1582271 (E.D. Cal., Jun 05, 2006) (citing Underwood v. Wilson, 151 F.3d 292 (5th Cir.1998) and Foulk v. Charrier, 262 F.3d 687 (8th Cir.2001)); Arreola v. Hickman, Civ. S-05-2548-DFL-GGH, 2006 W L 2590890 (E.D. Cal., Sep 08, 2006); Callegari v. Lee, Civ. 08-2420-MMC, 2009 W L 2258337 (N.D. Cal., Jul 28, 2009) (citing Gregory v. PHS, Inc., No. Civ. A. 00-467-SLR, 2001 W L 1182779, *2 (D. Del. Sept. 21, 2001) and Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001)). However, the support cited in the abovementioned court documents do not address the import of Woodford v. Ngo and the recent Ninth Circuit precedent addressing circumstances that would serve as an excuse from the exhaustion requirement under § 1997e(a). 3 1 the Ninth Circuit noted that it would “‘refuse to interpret the PLRA so narrowly as to . . . permit 2 [prison officials] to exploit the exhaustion requirement through indefinite delay in responding to 3 grievances,’” and that “[d]elay in responding to a grievance, particularly, a time-sensitive one, may 4 demonstrate that no administrative process is in fact available.” 422 F.3d 926, 943 n.18 (quoting 5 Lewis v. Washington, 300F.3d 829, 833 (7th Cir.2002)). Ultimately, the Ninth Circuit concluded 6 that the plaintiff was not “prejudiced by the long time it took to conclude the investigation into 7 [plaintiff’s] staff complaint.” Id. In Ngo, the United State Supreme Court left “open the possibility 8 that an exception to the exhaustion requirement might exist” in circumstances where “the prison had 9 created draconian procedural requirements that would ‘trip[] up all but the most skillful prisoners’ - 10 which might also render administrative remedies effectively unavailable so as to excuse a failure to 11 exhaust.” Sapp v. Kimbrell, 623 F.3d 813, 827 (citing Woodford v. Ngo, 548 U.S. 81, 126). 12 Administrative remedies are not “effectively unavailable” and a prisoner is not equitably 13 excused from the exhaustion requirement under § 1997e(a) where a delay in a prisoner’s 14 administrative appeal: 1) does not involve a time-sensitive grievance; and 2) is not a result of a 15 prison’s action which thwarts a prisoner’s attempt to properly exhaust administrative remedies, thus 16 prejudicing a prisoner’s ability to bring a federal suit. See Woodford v. Ngo, 548 U.S. 81, 88, 126 17 (suggesting as relevant the underlying reasons for why an administrative remedy is unavailable and 18 leaving open the possibility that acts of a prison that thwart proper exhaustion may allow an 19 equitable exception to the PLRA's exhaustion requirement); Sapp v. Kimbrell, 623 F.3d 813, 827 20 (finding that a prison’s procedural requirements could serve to thwart a prisoner’s attempt to 21 properly exhaust administrative remedies and such a circumstance should serve as an excuse from 22 the exhaustion requirement); Nunez v. Duncan, 591 F.3d 1217, 1224-26 (a warden’s mistake 23 prevented prisoner from properly exhausting administrative remedies and thus such remedies were 24 effectively unavailable); Brown v. Valoff, 422 F.3d 926, 943 n.18 (9th Cir. 2005) (noting that a delay 25 in administrative remedies for time-sensitive grievances may serve as an excuse from the exhaustion 26 requirement under § 1997e(a), however, a delay that does not result in prejudice to a plaintiff may 27 not warrant excuse from the exhaustion requirement). 28 4 1 The declaration from the OTLA-HC stated that the delay was due to “the large volume of 2 appeals.” A delay in Plaintiff’s Director’s Level appeal due to the large volume of cases does not 3 appear to be a situation where prison officials are exploiting the grievance process, nor does the 4 delay prejudice Plaintiff in seeking a remedy for the one time involuntary administration of anti- 5 psychotic medication. See Brown v. Valoff, 422 F.3d 926, 943 n.18 (9th Cir. 2005). If the Court 6 were to find that a case such as Plaintiff’s were exempted from the exhaustion requirement, such 7 finding would open the floodgates to all of the Director’s Level appeals that are still pending but 8 have not been decided within the sixty work day requirement, thus rendering the exhaustion 9 requirement of the PLRA “into a largely useless appendage” and frustrating the prison’s 10 administrative review process. See Woodford v. Ngo, 548 U.S. 81, 93. Finding that Plaintiff is not 11 excused from the exhaustion requirement in this instance is consistent with the underlying purpose 12 of the exhaustion requirement under the PLRA “to eliminate unwarranted federal-court interference 13 with the administration of prisons, and . . . to ‘affor[d] corrections officials time and opportunity to 14 address complaints internally before allowing the initiation of a federal case.’” Woodford v. Ngo, 15 548 U.S. 81, 93. 16 17 III. Conclusion and Recommendation 18 Defendants have shown that Plaintiff did not exhaust his Fourteenth Amendment claim 19 against them and they are therefore entitled to dismissal of the claim. Accordingly, the Court 20 HEREBY RECOMMENDS that Defendants’ motion to dismiss, filed August 11, 2010, be 21 GRANTED, and Plaintiff’s claim against them be DISMISSED, without prejudice, for failure to 22 exhaust. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 5 1 These Findings and Recommendations will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 3 days after being served with these Findings and Recommendations, the parties may file written 4 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 5 Findings and Recommendations.” The parties are advised that failure to file objections within the 6 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 7 1153 (9th Cir. 1991). 8 9 10 11 IT IS SO ORDERED. Dated: 0jh02o January 25, 2011 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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