(PC) Harper v. Costa et al, No. 2:2007cv02148 - Document 48 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 02/05/09 recommending that defendants' motion to dismiss 20 be granted and this action be dismissed without prejudice. Motion 20 referred to Judge John A. Mendez. Objections due within 20 days. (Plummer, M)

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(PC) Harper v. Costa et al Doc. 48 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DANIEL HARPER, 11 Plaintiff, Defendants. 12 13 No. CIV S-07-2148 JAM KJM P FINDINGS & RECOMMENDATIONS vs. COSTA, et al., 14 15 / 16 Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 17 42 U.S.C. § 1983. He alleges that in 2007, while housed at Mule Creek State Prison, defendant 18 Costa applied leg shackles so tightly that they cut into plaintiff’s ankles and defendant Ochoa 19 refused plaintiff’s request to loosen the shackles. Compl. at 3. Defendants have filed a motion to 20 dismiss, alleging that plaintiff failed to exhaust administrative remedies before filing the instant 21 suit. 22 The Prison Litigation Reform Act (PLRA) provides that “no action shall be 23 brought with respect to prison conditions under section 1983 of this title, . . . until such 24 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Conditions of 25 confinement” subject to exhaustion have been defined broadly as “the effects of actions by 26 government officials on the lives of persons confined in prisons.” 18 U.S.C. § 3626(g)(2); Smith 1 Dockets.Justia.com 1 v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 2 (2d Cir. 2002). Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 3 U.S. 731, 741 (2001), and “[p]roper exhaustion demands compliance with an agency's deadlines 4 and other critical procedural rules ...,”; Woodford v. Ngo, 548 U.S. 81, 90 (2006). An inmate is 5 required to exhaust only those remedies which are available; for a remedy to be “available,” there 6 must be the “possibility of some relief. . . .” Booth, 532 U.S. at 738. The grievance process must 7 be completed before the inmate files suit; exhaustion during the pendency of the litigation will 8 not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). 9 California prison regulations provide administrative procedures in the form of one 10 informal and three formal levels of review to address an inmate’s claims. See Cal. Code Regs. 11 tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a plaintiff has 12 received a “Director’s Level Decision,” or third level review, with respect to his issues or claims. 13 Cal. Code Regs. tit. 15, § 3084.5. 14 Finally, to satisfy the exhaustion requirement, a grievance must alert prison 15 officials to the claims the plaintiff has included in the complaint. Porter v. Nussle, 534 U.S. 516, 16 524-25 (2002) (purpose of exhaustion requirement is to give officials “time and opportunity to 17 address complaints internally before allowing the initiation of a federal case”); Brown v. Sikes, 18 212 F.3d 1205, 1209 (11th Cir. 2000) (1997e(a) requires that a prisoner provide as much relevant 19 information as he reasonably can in the administrative grievance process). 20 A motion to dismiss for failure to exhaust administrative remedies prior to filing 21 suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 22 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for a failure to exhaust non-judicial 23 remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 24 1119-20. Defendants bear the burden of proving plaintiff’s failure to exhaust. Id. at 1119. 25 ///// 26 ///// 2 1 Defendants have submitted declarations and a number of grievances filed by 2 plaintiff while he was housed at Mule Creek State Prison. The first declaration is from S. Viles, 3 a Staff Services Analyst with the Inmate Appeals Branch. Viles declares that a search of the 4 database of all inmate appeals that received Director’s Level decisions shows that only three of 5 plaintiff’s grievances made it to the Director’s Level; that two of them were filed before the 6 alleged incident in this case; and that the third challenges the results of a disciplinary proceeding. 7 Viles Decl. ¶¶ 1, 11 & Exs. A (appeal history) & B (third grievance).1 E. Reyes, the Appeals 8 Coordinator at Mule Creek State Prison, avers that plaintiff did not file a grievance or staff 9 complaint about the defendants’ application of and refusal to remove the tight leg shackles. 10 Reyes Decl. ¶¶ 1, 13 & Ex. A (Appeal Log). 11 In his opposition, plaintiff concedes that he did not file a grievance about this 12 incident “because the crime already happened so there was no need for me to write them up for it 13 plus if I commit a crime I do not get wrote up . . . .” Opp’n at 1. Plaintiff thus appears to argue 14 that the exhaustion requirement does not apply to his claim of a too-forceful application of 15 restraints. However, in Porter v. Nussle, 534 U.S. at 532, the Supreme Court said “we hold that 16 the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they 17 involve general circumstances or particular episodes, and whether they allege excessive force or 18 some other wrong.” Plaintiff’s concession of his failure to exhaust is a sufficient basis for a 19 dismissal of this action; it is bolstered by defendants’ showing. Wyatt, 315 F.3d at 1120. 20 21 IT IS HEREBY RECOMMENDED that the defendants’ motion to dismiss (docket no. 20) be granted and this action be dismissed without prejudice. 22 These findings and recommendations are submitted to the United States District 23 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 24 25 26 1 Exhibit B supporting Viles’ declaration is, for the most part, unreadable. However, portions of this exhibit are also included in Exhibit A supporting the declaration of E. Reyes. See Reyes Decl., Ex. B, Docket No. 20-4 at 47-51 (CM/ECF assigned page numbers). 3 1 days after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 4 shall be served and filed within ten days after service of the objections. The parties are advised 5 that failure to file objections within the specified time may waive the right to appeal the District 6 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 DATED: February 5, 2009. 8 9 10 2 11 harp2148.57 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4

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