(PC) Steward v. Guiterez et al, No. 1:2018cv00928 - Document 17 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, Without Prejudice, for Failure to Exhaust the Administrative Remedies re 15 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Stanley A. Boone on 11/7/2018. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT M. STEWARD, 12 Plaintiff, 13 14 v. GUITEREZ, et.al., 15 Defendants. 16 Case No.: 1:18-cv-00928-DAD-SAB (PC) FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES [ECF No. 15] Plaintiff Robert M. Steward is appearing pro se and in forma pauperis in this civil rights action 17 18 ) ) ) ) ) ) ) ) ) ) pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s first amended complaint, filed November 5, 2018. 19 20 I. 21 SCREENING REQUIREMENT 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 24 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 25 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 26 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 27 /// 28 /// 1 1 A complaint must contain “a short and plain statement of the claim showing that the pleader is 2 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 4 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 5 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 6 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 7 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 8 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 9 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 10 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 11 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 12 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 13 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 14 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 15 II. 16 COMPLAINT ALLEGATIONS 17 Plaintiff names correctional officers Guiterez, Herrera, and Serna, as Defendants. 18 Unnecessary and excessive force was used by Guiterez, Herrera, and Serna which violated 19 Plaintiff’s rights under the Eighth and Fourteenth Amendments by physical assault with use of batons 20 and pepper spray. 21 Plaintiff seeks compensatory and punitive damages. 22 Regarding Plaintiff’s exhaustion of administrative remedies, he indicates that remedies are 23 available at his institution, and that he has submitted a request for relief regarding these matters. He 24 further indicates that the appeal is in the process of being completed at the highest level of review. 25 /// 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. Exhaustion of Administrative Remedies 4 Pursuant to the PLRA, “[n]o action shall be brought with respect to prison conditions under [42 5 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional 6 facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 7 Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 8 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 9 Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief 10 offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement 11 applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). Although the 12 “failure to exhaust is an affirmative defense under the PLRA,” a prisoner’s complaint may be subject to 13 dismissal for failure to state a claim when an affirmative defense appears on its face. Jones v. Bock, 549 14 U.S. at 202, 215; see also Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (noting that 15 where a prisoner’s failure to exhaust is clear from the fact of the complaint, his complaint is subject to 16 dismissal for failure to state a claim, even at the screening stage); Wyatt v. Terhune, 315 F.3d 1108, 17 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal[.]”), 18 overruled on other grounds by Albino, 747 F.3d at 1166. 19 In California, a prison inmate satisfies the administrative exhaustion requirement by following 20 the procedures set forth in sections 3084.1 through 3084.8 of Title 15 of the California Code of 21 Regulations. An inmate “may appeal any policy, decision, action, condition, or omission by the 22 department or its staff that the inmate…can demonstrate as having a material adverse effect upon his or 23 her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). The regulations require the prisoner 24 to proceed through all three levels of review. See Cal. Code Regs. tit. 15, § 3084.2(a). A decision at the 25 third level of review, known as the director’s level of review, is not appealable and constitutes the third 26 level of administrative review. Id. 27 /// 28 /// 3 1 Here, as discussed above, Plaintiff has affirmatively alleged that although he has submitted an 2 appeal regarding his allegations, his appeal is still in the process of being completed at the highest level 3 of review. Therefore, Plaintiff’s failure to exhaust his administrative remedies prior to filing suit is clear 4 from the face of the complaint. Based on Plaintiff’s concession of nonexhaustion, this action must be 5 dismissed, without prejudice. Jones, 549 U.S. at 211; McKinney, 311 F.3d at 1199-1201; see also City 6 of Oakland, Cal. v. Hotels.com LP, 572 F.3d 958, 962 (9th Cir. 2009) (“[F]ailure to exhaust the 7 administrative remedies is properly treated as a curable defect and should generally result in a dismissal 8 without prejudice.”); Albino, 747 F.3d at 1170 (“Exhaustion should be decided, if feasible, before 9 reaching the merits of a prisoner’s claim”); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 10 (the “exhaustion requirement does not allow a prisoner to file a complaint addressing non-exhausted 11 claims.”) (citing McKinney, 311 F.3d at 1199). Further, although the Court would typically grant 12 Plaintiff leave to amend due to his pro se status, amendment is futile in this instance because the failure 13 to exhaust cannot be cured by the allegation of additional facts. See Lopez v. Smith, 203 F.3d 1122, 14 1127 (9th Cir. 2000); see also Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817, 15 824 (9th Cir. 2002) (recognizing “[f]utility of amendment” as a proper basis for dismissal without leave 16 to amend). Accordingly, this action must be dismissed, without prejudice, for failure to exhaust the 17 administrative remedies. 18 IV. 19 RECOMMENDATION For the reasons explained, it is HEREBY RECOMMENDED that this action be dismissed, 20 21 without prejudice, for failure to exhaust the administrative remedies. 22 This Findings and Recommendation will be submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 24 after being served with this Findings and Recommendation, Plaintiff may file written objections with 25 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 26 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may result 27 /// 28 /// 4 1 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 2 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. 5 Dated: 6 November 7, 2018 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5