-DLB (PC) Crudup v. Ward et al, No. 1:2010cv00934 - Document 26 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 18 Defendants' Motion to Dismiss be GRANTED re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Dennis L. Beck on 11/15/2011. Referred to Judge Ishii. Objections to F&R due within twenty-one (21) days. (Jessen, A)
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-DLB (PC) Crudup v. Ward et al Doc. 26 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 MICHAEL CRUDUP, 9 CASE NO. 1:10-CV-00934-AWI-DLB PC Plaintiff, 10 v. 11 FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS’ MOTION TO DISMISS BE GRANTED J. WARD, et al., 12 (DOC. 18) Defendants. 13 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS / 14 15 16 Findings And Recommendations I. 17 Background Plaintiff Michael Crudup (“Plaintiff”) is a prisoner in the custody of the California 18 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding 20 on Plaintiff’s complaint filed May 25, 2010 against Defendants J. Ward and M. Jericoff for 21 retaliation in violation of the First Amendment and violation of the Eighth Amendment. Pending 22 before the Court is Defendants’ unenumerated 12(b) motion to dismiss certain claims for 23 Plaintiff’s failure to exhaust administrative remedies, filed July 19, 2011. Defs.’ Mot. Dismiss, 24 Doc. 18. On October 14, 2011, Plaintiff filed a statement of non-opposition to Defendants’ 25 motion. Doc. 23. The matter is submitted pursuant to Local Rule 230(l). 26 II. 27 28 Summary Of Complaint Plaintiff was a member of the Men’s Advisory Council (“MAC”) at Pleasant Valley State Prison (“PVSP”) at all times relevant to the events in the complaint. Compl. ¶ 7. Defendant M. 1 Dockets.Justia.com 1 Jericoff is a correctional officer at Pleasant Valley State Prison (“PVSP”) in Coalinga, California. 2 Id. ¶ 5. Defendant J. Ward is a correctional sergeant at PVSP. Id. ¶ 6. In the months preceding 3 July 1, 2009, Plaintiff complained to Defendants concerning the cancellation of programs, which 4 Plaintiff believes was exaggerated security concerns. Id. ¶ 7. Plaintiff was threatened with false 5 write-ups and placed in administrative segregation (“ad seg”). Plaintiff continued his duties as a 6 MAC member. Id. 7 On July 1, 2009, Defenadnt Jericoff approached Plaintiff in an aggressive manner and 8 ordered Plaintiff to turn around and place his hands on his head. Id. ¶ 9. Plaintiff brought his 9 hands to his head, and without warning, Defendant Jericoff grabbed Plaintiff in a bear hug, 10 maliciously pushed him forward, tripping Plaintiff to the ground, and landing on top of Plaintiff, 11 causing injuries to Plaintiff’s neck and head. Id. Defendant Jericoff then maliciously grabbed 12 Plaintiff’s neck and attempted to push his head into the ground. Id. 13 Plaintiff suffered cuts and severe abrasions to his knees, elbows, and knuckles. Id. ¶ 10. 14 When responding staff arrived, Defendant Jericoff handcuffed Plaintiff maliciously by cuffing 15 him so tightly it cut Plaintiff’s hands and wrists. Id. ¶ 11. Plaintiff filed a 602 inmate grievance 16 regarding the above, and on September 4, 2009, Defendant Ward threatened Plaintiff with false 17 reports and placement in ad seg unless he dropped the grievance. Id. ¶ 12. Defendants Ward and 18 Jericoff falsified a Rules Violation Report in order to retaliate against Plaintiff and remove him 19 from his MAC position. Id. ¶ 13. Plaintiff alleges retaliation in violation of the First 20 Amendment and excessive force in violation of the Eighth Amendment. Plaintiff requested 21 declaratory relief, monetary damage, and costs of suit. 22 III. Exhaustion Of Administrative Remedies 23 A. 24 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with Legal Standard 25 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 26 confined in any jail, prison, or other correctional facility until such administrative remedies as are 27 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 28 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney 2 1 v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required 2 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 3 Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all 4 prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 5 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 6 defense under which defendants have the burden of raising and proving the absence of 7 exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The 8 failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an 9 unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 10 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th 11 Cir. 1998) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative 12 remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Id. at 13 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, 14 the proper remedy is dismissal without prejudice. Id. 15 B. 16 The CDCR has an administrative grievance system for prisoner complaints. Cal. Code Discussion 17 Regs. tit. 15, § 3084.1 (2010). The process is initiated by submitting a CDC Form 602. Id. § 18 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, 19 second formal level, and third formal level, also known as the “Director’s Level.” Id. § 3084.5. 20 Appeals must be submitted within fifteen working days of the event being appealed, and the 21 process is initiated by submission of the appeal to the informal level, or in some circumstances, 22 the first formal level. Id. §§ 3084.5, 3084.6(c). In order to satisfy § 1997e(a), California state 23 prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. 24 Ngo, 548 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always 25 require pursuit of an appeal through the Director’s Level of Review. What is required to satisfy 26 exhaustion is a fact specific inquiry, and may be dependent upon prison officials’ response to the 27 appeal. See Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of 28 exceptions to exhaustion requirement from other circuits); Brown v. Valoff, 422 F.3d 926, 935-36 3 1 (9th Cir. 2005) (“[E]ntirely pointless exhaustion” not required). 2 Defendants concede that Plaintiff filed and exhausted an administrative grievance 3 regarding the alleged excessive force incident. Defs.’ Mem. P. & A. 3:7-11. However, 4 Defendants contend that Plaintiff failed to exhaust administrative remedies as to his retaliation 5 claim because he failed to file any grievances related to the alleged retaliation. Id. at 3:11-12. 6 Defendants submit a declaration from J. Morgan, appeals coordinator at Pleasant Valley State 7 Prison, attesting to the four inmate grievances that were filed within the relevant time period. J. 8 Morgan Decl. ¶ 5. Having examined these four inmate grievances, the Court finds that none of 9 the grievances relate to the alleged retaliation by Defendants Ward and Jericoff. 10 Plaintiff does not oppose Defendants’ motion. Pl.’s Non-Opp’n, Doc. 23. Plaintiff 11 concedes that he did not exhaust administrative remedies as to his retaliation claim. Id. Plaintiff 12 is correct that dismissal of Plaintiff’s retaliation claim will not affect exhaustion of Plaintiff’s 13 Eighth Amendment claim. Accordingly, the Court will recommend dismissal of Plaintiff’s 14 retaliation claim against Defendants Jericoff and Ward without prejudice. Because Plaintiff’s 15 only claim against Defendant Ward is for retaliation, the Court will also recommend dismissal of 16 Defendant Ward from this action. 17 IV. Conclusion And Recommendation 18 Based on the foregoing, it is HEREBY RECOMMENDED that: 19 1. 20 21 Defendants’ motion to dismiss certain claims, filed July 19, 2011, should be GRANTED; 2. Plaintiff’s retaliation claim against Defendants Jericoff and Ward should be 22 dismissed without prejudice for failure to exhaust administrative remedies 23 pursuant to 42 U.S.C. § 1997e(a); and 24 3. Defendant Ward should be dismissed from this action. 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty- 27 one (21) days after being served with these Findings and Recommendations, the parties may file 28 written objections with the Court. The document should be captioned “Objections to Magistrate 4 1 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 2 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 3 Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 4 5 IT IS SO ORDERED. Dated: 3b142a November 15, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5