(PC)Tatum v. Pliler et al, No. 2:2006cv00587 - Document 17 (E.D. Cal. 2008)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 2/6/2008 recommending that 13 MOTION to DISMISS be granted in part; plaintiff's first amended claims articulated in paragraphs 62 through 72 and 78 through 88 be di smissed; and that defendants Alameida, Flory, Pliler and Rosario be directed to file their answer to plaintiff's claims. Motion referred to Judge Garland E. Burrell, Jr. Objections to these findings and recommendations may be filed w/i 20 days after being served. (Waggoner, D)
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(PC)Tatum v. Pliler et al Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARKUS E. TATUM, 11 Plaintiff, 12 13 No. CIV S-06-0587 GEB KJM P vs. C. K. PLILER, et al., Defendants. 14 FINDINGS & RECOMMENDATIONS / 15 16 Plaintiff is a California prisoner proceeding pro se with an action for violation of 17 civil rights under 42 U.S.C. § 1983. Defendants Alameida, Pliler, Rosario and Flory1 are either 18 employees or former employees of the California Department of Corrections and Rehabilitation 19 (CDCR). These defendants have filed a motion seeking dismissal of plaintiff’s First Amendment 20 denial of access to courts claims because, they say, plaintiff failed to exhaust administrative 21 remedies with respect to these claims prior to filing suit. A motion to dismiss for failure to exhaust administrative remedies prior to filing 22 23 suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 24 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for a failure to exhaust non-judicial 25 1 26 On April 13, 2007, the court ordered service of process upon these defendants pursuant to 28 U.S.C. § 1915A. 1 Dockets.Justia.com 1 remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 2 1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies, 3 the proper remedy is dismissal. Id. 4 The Prison Litigation Reform Act provides that “[n]o action shall be brought with 5 respect to prison conditions under section 1983 of this title, . . . until such administrative 6 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). California prison regulations 7 provide administrative procedures in the form of one informal and three formal levels of review 8 to address plaintiff’s claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative 9 procedures generally are exhausted once a prisoner has received a “Director’s Level Decision,” 10 or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All 11 steps must be completed before a civil rights action is filed; exhaustion during the pendency of 12 the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 13 (9th Cir. 2002). Defendants bear the burden of proving plaintiff’s failure to exhaust. Wyatt, 315 14 F.3d at 1119. 15 In his complaint, plaintiff asserts that defendants denied him access to his legal 16 materials and the law library between August 29, 2001 and September 16, 2002. Plaintiff alleges 17 that because he was denied this access, he was unable to respond to a court order filed December 18 7, 2001 and findings and recommendations filed January 16, 2002 and thus one of plaintiff’s 19 lawsuits was dismissed on or about February 25, 2002 for failure to prosecute; he also was 20 denied the ability later in 2002 to file a petition for writ of certiorari in the United States 21 Supreme Court. See Compl. at 2(b) (Claim 6), ¶¶ 62-88. 22 In his opposition to defendants’ motion to dismiss, plaintiff asserts that he 23 exhausted administrative remedies with respect to his denial of access to courts claims. In 24 support of his argument, petitioner points to a grievance filed February 15, 2002 and processed 25 through the Director’s Level, in which he asserted that he and other inmates complained of the 26 denial of many privileges during an extended lockdown. See Opp’n, Ex. A (grievance # 022 1 00443).2 The continuation sheet to the initial grievance notes that an incident on January 4, 2002 2 led to an initial suspension of privileges, which, at the time of initial filing of the grievance, had 3 been going “for over a month now.” Id. at 12.3 Plaintiff also included the statement that “we are 4 being denied [among other asserted privileges] meaningful access to the courts. . . .” Id. In a 5 later section of the continuation sheet, it reads, “and of course we are still being denied outdoor 6 exercise, visits, religious services, law library access, etc. . .,” and cites to the First Amendment. 7 Id. at 13.4 In appealing to the third level of the grievance process, plaintiff again includes in his 8 description of the group’s problem that they are being denied “meaningful access to the courts [] 9 in violation of our constitutional rights pursuant to the 1st . . . Amendment[]. . .” Id. at 15. At all 10 levels of the grievance process, plaintiff articulates the action requested as “that this emergency 11 lockdown be terminated” and “that this policy of deprivation/confiscation be discontinued.” Id. 12 at 8, 16. Plaintiff identifies the “warden and administration” as responsible for the allegedly 13 offending “policies and practices.” Id. at 8, 12, 13. Plaintiff does not offer more factual detail in 14 support of his grievance. The grievance was resolved on the merits at the Director’s Level on 15 May 22, 2002. Opp’n, Exs. A & D. 16 ///// 17 18 19 20 2 This grievance is identified in the complaint by number, along with three other laterfiled grievances. Compl. at 2. The grievances so listed do not appear to correspond to the grievances noted by defendants in their motion to dismiss. See Mot. at 7; Grannis Decl. ¶ 5. The only grievance made a part of the record is the one provided by plaintiff with his opposition. 3 21 22 23 24 25 26 Page numbers cited to in the Opposition are those assigned by the court’s CM/ECF system. 4 Defendants object to the authenticity of plaintiff’s exhibit because it includes two continuation sheets instead of one, the limit prescribed by CDCR regulations. Reply at 2:25 3:2; see Cal. Code Regs. tit. 15, § 3084.2(a)(1) (continuation sheet limitation described as one page “front and back”). Plaintiff has filed his opposition under the penalty of perjury. While plaintiff’s institution presumably could have rejected the grievance for failure to comply with the technical one page requirement, there is no indication it did so. See Cal. Code Regs. tit. 15, § 3084.3 (provisions for screening and rejection of appeals before acceptance for review). Rather, it appears the grievance was accepted as filed and its substance fully responded to. Opp’n, Ex. D. The objection is overruled. 3 1 As noted in Jones v. Bock, __ U.S. __, 127 S. Ct. 910, 922 (2007), “[c]ompliance 2 with prison grievance procedures [] is all that is required by the PLRA to ‘properly exhaust.’” 3 Specifically, “[t]he level of detail necessary in a grievance to comply with the grievance 4 procedures will vary from system to system and claim to claim, but it is the prison's 5 requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Id. 6 CDCR regulations require that an inmate grievance “describe the problem and action requested.” 7 Cal. Code Regs. tit. 15, § 3084.2(a). There are no additional substantive requirements applicable 8 to group appeals. Cal. Code Regs. tit. 15, § 3084.2(f). Generally, the basic purpose of the 9 exhaustion requirement is to put prison officials on notice of conduct that forms the basis of 10 federal claims before those claims are submitted in a complaint. Jones, 127 S. Ct. at 922; see 11 also Irvin v. Zamora, 161 F. Supp. 2d 1125, 1134-35 (S.D. Cal. 2001); cf. Butler v. Adams, 397 12 F.3d 1181, 1183 (9th Cir. 2005) (in exhausting an ADA grievance, it was sufficient for inmate to 13 complete the form provided by his institution). 14 Here, while plaintiff did not provide prison officials with a great amount of detail 15 regarding his access to courts claim, he did include a statement that the warden’s policies were 16 denying him and other inmates “law library access.” Given the very general requirement of 17 CDCR’s regulation, that a grievance “describe” a problem, this court cannot say that the 18 grievance in this case was insufficient to put the warden on notice. Irvin, 161 F. Supp. 2d at 19 1134-35. In light of the Supreme Court’s decision in Jones, the court also cannot say that the 20 omission of particular defendants’ names from the grievance precludes litigation against them. 21 127 S. Ct. at 922-23. However, defendants are correct that the dates of some of the events 22 underlying plaintiff’s First Amendment claims in this court fall outside the date range made 23 relevant by the grievance plaintiff relies on in his opposition. See Compl. ¶¶ 62-72, 78-88 24 (describing events before January 4, 2002 and between May 8, 2002 and September 19, 2002). 25 These events have not or cannot have been exhausted by the grievance plaintiff presents, and 26 thus the corresponding claims cannot proceed. 4 Plaintiff’s First Amendment claims must be dismissed in part, to the extent they 1 2 are based on alleged problems obtaining library access occurring before the January 4, 2002 3 triggering date identified in the February 15, 2002 grievance, and such problems with library 4 access occurring after the filing date of that grievance. 5 In accordance with the above, IT IS HEREBY RECOMMENDED that: 6 1. Defendants’ July 12, 2007 motion to dismiss (docket no. 13) be granted in 7 part; 2. Plaintiff’s First Amendment claims articulated in paragraphs 62 through 72 8 9 and 78 through 88 of the complaint be dismissed; and 3. Defendants Alameida, Flory, Pliler and Rosario be directed to file their answer 10 11 to plaintiff’s remaining claims within twenty days of any adoption of the foregoing findings and 12 recommendations. 13 These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 15 days after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 18 shall be served and filed within ten days after service of the objections. The parties are advised 19 that failure to file objections within the specified time may waive the right to appeal the District 20 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: February 6, 2008. 22 23 1 24 tatu0587.57 25 26 5
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