(PC) Cervantes v. Lindsey, No. 1:2016cv00343 - Document 15 (E.D. Cal. 2017)

Court Description: ORDER GRANTING 8 Defendant's Motion to Dismiss Plaintiff's Complaint signed by Magistrate Judge Barbara A. McAuliffe on 1/27/2017. CASE CLOSED. (Jessen, A)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 SALVADOR CERVANTES, 13 14 15 16 Plaintiff, v. B. LINDSEY, Case No. 1:16-cv-00343-BAM (PC) ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT (ECF No. 8) Defendant. 17 18 Plaintiff Salvador Cervantes (“Plaintiff”) is a state prisoner proceeding in this civil rights 19 action under 42 U.S.C. § 1983. Plaintiff initiated this action on March 11, 2016. (ECF No. 1.) 20 This action proceeds on Plaintiff’s complaint (“Complaint”) against defendant Officer B. Lindsey 21 (“Defendant”) for cruel and unusual punishment in violation of the Eighth Amendment and 22 Fourteenth Amendment of the United States Constitution. 23 On May 23, 2016, Defendant filed a motion to dismiss under Rule 12(b)(6) of the Federal 24 Rules of Civil Procedure for failure to state a claim. Plaintiff opposed the motion on June 13, 25 2016. Defendant replied on June 20, 2016. The motion is deemed submitted. Local Rule 230(l). 26 Defendant moves to dismiss on the grounds that Plaintiff failed to exhaust his 27 administrative remedies, failed to state a claim, and that Defendant is entitled to qualified 28 immunity. For the reasons discussed below, the Court grants Defendant’s motion to dismiss for 1 1 failure to exhaust administrative remedies, and does not reach the merits of Defendant’s other 2 grounds for dismissal. 3 I. 4 Motion to Dismiss a. Legal Standard 5 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim, and 6 dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts 7 alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 8 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court’s 9 review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass’n, 629 10 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. 11 Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006); Schneider v. California Dept. of 12 Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 13 To survive a motion to dismiss, a complaint must contain sufficient factual matter, 14 accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 15 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Conservation Force, 16 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).1 The Court 17 must accept the well-pleaded factual allegations as true and draw all reasonable inferences in 18 favor of the non-moving party. Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Huynh, 19 465 F.3d at 996-97; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). 20 b. Failure to Exhaust 21 i. Legal Standard 22 Under the Prison Litigation Reform Act (PLRA),“[n]o action shall be brought with respect 23 to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in 24 any jail, prison, or other correctional facility until such administrative remedies as are available 25 are exhausted.” 42 U.S.C. § 1997e(a); see Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. 26 1 27 28 Plaintiff’s opposition motion cites Conley v. Gibson, 355 U.S. 41, 45-46 (1957) for the proposition that a complaint should not be dismissed under Rule 12(b)(6) unless a plaintiff can prove “no set of facts” to support his claim. (ECF No. 13, pp. 1-2.) However, this rule from Conley was expressly abrogated in Twombly, 550 U.S. at 561-63 (“[T]his famous observation has earned its retirement.”) 2 1 Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). “The PLRA attempts to eliminate unwarranted 2 federal-court interference with the administration of prisons, and thus seeks to afford corrections 3 officials time and opportunity to address complaints internally before allowing the initiation of a 4 federal case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006) (alterations, footnote, and quotation 5 marks omitted). Requiring exhaustion provides prison officials a “fair opportunity to correct their 6 own errors,” Id. at 94, and creates an administrative record for grievances that eventually become 7 the subject of federal court complaints, see Porter v. Nussle, 534 U.S. 516, 524-25 (2002). 8 9 Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion 10 requirement applies to all prisoner suits relating to prison life, Porter, 534 U.S. at 532. However, 11 because “there can be no absence of exhaustion unless some relief remains available, a defendant 12 must demonstrate that pertinent relief remained available, whether at unexhausted levels of the 13 grievance process or through awaiting the results of the relief already granted as a result of that 14 process.” Brown, 422 F.3d at 936-37. The PLRA does not require exhaustion where 15 administrative remedies are unavailable through no fault of the prisoner. See Sapp v. Kimbrell, 16 623 F.3d 813, 822 (9th Cir. 2010) (citing Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010). 17 The failure to exhaust in compliance with the PLRA is an affirmative defense under which 18 defendants have the burden of pleading and proving the absence of exhaustion. Jones, 549 U.S. at 19 216; Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). Defendants may raise 20 exhaustion deficiencies as an affirmative defense under § 1997e(a) in either (1) a motion to 21 dismiss under Rule 12(b)(6) or (2) a motion for summary judgment under Rule 56. Id. at 1168-69. 22 If the court concludes that the plaintiff has failed to exhaust administrative remedies, the proper 23 remedy is dismissal without prejudice of the portions of the complaint barred by § 1997e(e). 24 Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). 25 In ruling on a 12(b)(6) motion to dismiss for the failure to exhaust administrative 26 remedies, the court “may generally consider only allegations contained in the pleadings, exhibits 27 attached to the complaint, and matters properly subject to judicial notice.” Outdoor Media Group, 28 Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks 3 1 omitted). The court may also consider documents incorporated by reference into the complaint. 2 Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). 3 ii. Grievance Procedure 4 The California Department of Corrections and Rehabilitation has an administrative 5 grievance system for prisoner complaints. Cal. Code Regs. Title 15 § 3084.1. The process is 6 initiated by submitting a CDCR Form 602 describing the issue and the relief requested. Id. § 7 3084.2(a). Three formal levels of appeal are involved. See Id. § 3084.7. All first level appeals 8 must initially be submitted to the appeals coordinator for screening. See Id. §§ 3084.5(b), 9 3084.7(a). The final decision at the third level exhausts a prisoner’s administrative remedies. Id. § 10 3084.7(d)(3). 11 Appeals alleging staff misconduct are processed under § 3084.9(i)(1) and (i)(3). Cal. Code 12 Regs. Title 15 § 3084.5(b)(4). An inmate alleging staff misconduct must forward the appeal to the 13 appeals coordinator who determines whether to categorize the appeal as a staff complaint. Id. § 14 3084.9(i)(1). Unless stated otherwise, all appeals are subject to a third level of review. Id. § 15 3084.1(b); see also Vaughn v. Hood, No. 2:14-cv-2235 MCE KJN P, 2015 WL 5020691, *3 16 (E.D. Cal. August 21, 2015) (citing Cal. Code Regs. Title 15, § 3084.1(b) (“Processing an appeal 17 as a staff complaint does not preclude a prisoner from exhausting administrative appeals to the 18 Director’s Level.”). Prisoners must adhere to the deadlines and other “critical procedural rules” of 19 the prison’s grievance process, Woodford, 548 U.S. at 90; Jones, 549 U.S. at 218, such that an 20 untimely or otherwise procedurally defective grievance is insufficient, Woodford, 548 U.S. at 83- 21 84. 22 23 24 iii. Discussion 1. Defendant’s Position Defendant contends that the Court should dismiss this action because this is one of those 25 rare instances where the plaintiff’s failure to exhaust administrative remedies is clear from the 26 face of the complaint. Defendant states that Plaintiff was required to comply with the three-level 27 administrative review process for proper exhaustion, as provided under Cal. Code Regs. Title 15 28 §§ 3084.1(a), 3084.7, and 3084.7(d)(3). Defendant argues that Plaintiff implicitly understood the 4 1 exhaustion requirement, and that Plaintiff does not state that a grievance procedure was 2 unavailable to him. Defendant further argues that Plaintiff’s statement in his Complaint that he 3 exhausted available administrative remedies by writing to the CDCR Office of Internal Affairs 4 (OIA) is evidence that Plaintiff did not properly exhaust his administrative remedies. 2. Plaintiff’s Position 5 6 Plaintiff contends that because his grievance involved staff misconduct, it falls under the 7 exceptions to the appeals process stated in Cal. Code Regs. Title 15 § 3084.9(i)(1) and (i)(3). 8 Plaintiff alleges that he exhausted his administrative remedies by writing to the OIA, and that 9 letter was forwarded to the California Correctional Institute (CCI) for review where Plaintiff 10 contends it was processed as a staff complaint. Plaintiff argues that, under § 3084.9(i)(3), when 11 OIA declines to investigate a complaint, an inquiry must be conducted, and CCI conducted the 12 inquiry in this case. 13 Plaintiff alleges that he was interviewed by Correctional Lieutenant L. Machado on 14 September 9, 2014, as required by § 3084.9(i)(3), and that Captain J. Jones of CCI - Tehachapi, as 15 required by § 3084.9(i)(4), notified Plaintiff in a letter dated September 10, 2014 that it found no 16 violation. Plaintiff contends that Cal. Code Regs. Title 15 § 3084 provides no additional processes 17 regarding staff complaints. Plaintiff further argues that he exhausted his administrative remedies, 18 just not the ones Defendant has propounded. 3. Defendant’s Reply 19 20 Defendant contends that Plaintiff is improperly attempting to bypass the administrative 21 review process, and that Plaintiff’s arguments in his opposition brief are further evidence of the 22 failure to exhaust. Defendant also states that Plaintiff is improperly trying to classify his own 23 appeal via the “staff complaint” exception in Cal. Code Regs. Title 15 § 3084.9(i)(1) and (i)(3), 24 and that the three levels of review apply regardless of the “staff complaint” exception. Defendant 25 further argues that the administrative procedures identified in his moving papers are the only 26 procedures that apply here. 27 /// 28 /// 5 1 2 iv. Analysis The Court finds that this case presents a unique instance where the plaintiff’s failure to 3 exhaust administrative remedies is clear from the face of the complaint. Plaintiff’s allegation that 4 he exhausted available administrative remedies is undermined by his description of what that 5 exhaustion entailed. Plaintiff first alleges that instead of making any complaint using the 6 grievance process, he sent a letter to the OIA. As Defendant argues, this was an improper attempt 7 to bypass the administrative process. Plaintiff was required to first submit his grievance to the 8 institution’s appeals coordinator on the proper form for screening and management. Prison 9 officials are entitled to have the opportunity at the first step in the appeals process to categorize 10 Plaintiff’s grievance and adjudicate his claims on the merits. See Cal. Code Regs. Title 15 §§ 11 3084.2(a), 3084.5(b)(4); Woodford, 548 U.S. at 90. 12 OIA’s forwarding of the letter to CCI for review does not excuse Plaintiff’s initial attempt 13 to bypass the appeals coordinator, as the courts cannot countenance an inmate’s intentional 14 noncompliance with the administrative appeals process or critical steps within it. See Woodford, 15 548 U.S. at 95-96 (deliberate attempts to bypass the administrative process undermine the 16 benefits of exhaustion, and prevent prisons from fairly and fully considering grievances). Proper 17 exhaustion demands compliance with an administrative process’s “critical procedural rules” so 18 that the prison grievance system functions effectively, by allowing “the agency a fair and full 19 opportunity to adjudicate [an inmate’s] claims.” Id. at 90. Proper exhaustion also enables the 20 creation of a better quality administrative record by allowing the agency to identify witnesses and 21 gather evidence when memories are fresher, which can aid the court’s decisions if a suit is 22 eventually filed. Id. at 94-95. 23 On its face, the complaint in this case demonstrates non-compliance. Rather than 24 submitting a grievance to the appeals administrator, Plaintiff alleges that he attempted to bypass 25 the process by writing directly to the OIA. Although the OIA forwarded Plaintiff’s letter for 26 institutional review, interviews were not conducted until some several months after the incident, 27 according to the complaint. (ECF No. 1 ¶ 25.) Thus, while Plaintiff alleges some interviews were 28 conducted here, he fails to show that the administrative process has been properly exhausted at all 6 1 levels. See Cal. Code Regs. Title 15 § 3084.1(b) (stating that a prisoner exhausts the appeal 2 process upon completing the third level of review); Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 3 2010) (same). 4 Plaintiff contends that his failure to complete the first level of review should be excused 5 because his grievance was a staff complaint and falls under the exceptions provided in California 6 Code of Regulations Title 15 § 3084.9(i)(1) and 3084.9(i)(3). However, the appeals coordinator 7 determines whether a grievance is categorized as a staff complaint, not an inmate. See Cal. Code 8 Regs. Title 15 § 3084.9(i)(1). An inmate may not unilaterally characterize an appeal to bypass 9 critical steps in the well-established procedure. As Defendant argues, Plaintiff is trying to pick 10 his own procedures, but he has not alleged or argued that regular procedures were unavailable to 11 him, or that he should be otherwise excused from exhausting the available administrative 12 remedies. See Nunez, 591 F.3d at 1226 (holding that PLRA does not require exhaustion where 13 administrative remedies are effectively unavailable). Plaintiff’s apparent preference for the OIA 14 to have reviewed his complaint is not sufficient grounds for his non-compliance. 15 Furthermore, even if the grievance had been categorized as a staff complaint, it would not 16 excuse Plaintiff from exhausting his appeal to the third level of review. See Vaughn, 2015 WL 17 5020691 at *3. Plaintiff’s complaint makes no allegation, or argument, in his motion, that he 18 completed the third level of review or that the procedure was unavailable to him through no fault 19 of his own. Plaintiff alleges that a letter was sent to him informing him that no violations of 20 policy or procedure were found. No appeal of that decision was taken. (ECF No. 1 ¶ 25.) The 21 letter is not a decision at the third level. The Court can reasonably infer from these allegations 22 that a third level of review was not conducted. See Williford v. City of Portland, 320 Fed. Appx. 23 513, 515 (9th Cir. 2009); see also Doe I v. Wal-mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 24 2009) (stating that while a plaintiff’s allegations are accepted as true, courts “are not required to 25 indulge unwarranted inferences”) (internal quotation marks and citation omitted). 26 27 Accordingly, the Court will grant Defendant’s motion to dismiss for failure to exhaust administrative remedies. Plaintiff’s complaint will be dismissed, without prejudice. 28 7 1 II. Conclusion and Order 2 The Court HEREBY ORDERS that: 3 1. Defendant’s motion to dismiss (ECF No. 9), is GRANTED; 4 2. Plaintiff’s complaint is DISMISSED, without prejudice, for failure to exhaust 5 6 administrative remedies; 3. 7 8 All other pending motions, if any, are DENIED as having been rendered moot by this order; and 4. The Clerk of the Court is directed to close this case. 9 10 11 IT IS SO ORDERED. Dated: /s/ Barbara January 27, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8