(PC) Harris v. Walker et al, No. 2:2008cv01615 - Document 61 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 7/28/2010 RECOMMENDING that dfts' unopposed 55 motion to dismiss be granted. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due w/in 14 days. (Yin, K)
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(PC) Harris v. Walker et al Doc. 61 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN HARRIS, 12 Plaintiff, 13 14 No. CIV S-08-1615-GEB-CMK-P vs. FINDINGS AND RECOMMENDATIONS JAMES WALKER, et al., 15 Defendants. 16 / 17 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is defendants’ unopposed motion to dismiss (Doc. 19 55). 20 21 22 I. BACKGROUND Plaintiff names the following as defendants: Walker, Williamson, Moreno, 23 Hronek, and Igbokwe. As in the original complaint, plaintiff claims that defendant Williamson 24 filed a “false report” indicating that he was qualified for double-cell status despite plaintiff’s 25 history since December 2006 of single-cell status. He claims that his cellmate – inmate Ford – 26 posed a safety risk because inmate Ford was suicidal. He asserts that defendant Moreno failed to 1 Dockets.Justia.com 1 submit a “doubt cell review.”1 Plaintiff claims that defendant Williamson denied him a right to 2 inmate appeals by “lose or destroying his [grievances].” As to defendants Hronek and Moreno, 3 plaintiff claims that these defendants “. . . ordered Plaintiff to receive false CDC 115 [rules 4 violation report], told Plaintiff he would be taken to administrative segregation,” in violation of 5 his due process rights. As to defendant Igbokwe, plaintiff states that he “. . . requested staff 6 assistant on June 13, 2008, and correctional officer Igbokwe, was assigned as the investigative 7 employee. . .” and adds: “A due process claim based on procedures used in a prison disciplinary 8 proceeding.” It appears that plaintiff claims that defendant Igbokwe refused to investigate his 9 case. Plaintiff claims that defendant Walker, the prison warden, was aware of the alleged 10 violations and failed to prevent them. 11 In an April 23, 2009, screening order, the court stated: 12 To the extent plaintiff attempts to assert an Eighth Amendment safety claim based on his allegations that inmate Ford posed a danger, plaintiff’s allegations are insufficient. Specifically, while plaintiff alleges that inmate Ford is suicidal, he does not allege facts to suggest that inmate Ford posed any danger to plaintiff, or that any defendant knew of such a risk. Reading the complaint in the light most favorable to plaintiff and construing the factual allegations liberally, however, the court finds that plaintiff states a due process claim relating to the prison disciplinary process. 13 14 15 16 17 The complaint was deemed appropriate for service and all named defendants have appeared by 18 way of the pending motion to dismiss. 19 20 II. STANDARDS FOR MOTION TO DISMISS 21 In considering a motion to dismiss, the court must accept all allegations of 22 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 23 court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 24 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 25 1 26 It is unclear what plaintiff means by “doubt cell review,” but the court presumes this refers to plaintiff’s double-cell classification. 2 1 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 2 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 3 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 4 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 5 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by 6 lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). 7 Rule 8(a)(2) requires only “a short and plain statement of the claim showing that 8 the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is 9 and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) 10 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for 11 failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic 12 recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to 13 raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain 14 “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has 15 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 16 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 17 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more 18 than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. 19 at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, 20 it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id. 21 (quoting Twombly, 550 U.S. at 557). 22 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 23 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 24 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 25 documents whose contents are alleged in or attached to the complaint and whose authenticity no 26 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 3 1 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 2 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 3 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 4 1994). 5 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 6 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 7 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 8 9 A motion to dismiss based on a prisoner’s failure to exhaust administrative remedies is properly the subject of an unenumerated motion under Federal Rule of Civil 10 Procedure 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). “In deciding a 11 motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the 12 pleadings and decide disputed issues of fact.” Id. at 1119-20. Where the court looks beyond the 13 pleadings to a factual record in deciding the motion to dismiss, which is “. . . a procedure closely 14 analogous to summary judgment,” the court must assure that the plaintiff has faire notice of his 15 opportunity to develop a record. Id. at 1120 n.14 (referencing the notice requirements outlined in 16 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 17 409 (9th Cir. 1988). Defendants bear the burden of establishing that the plaintiff failed to 18 exhaust administrative remedies prior to filing suit. See Wyatt, 315 F.3d at 1120. If the court 19 concludes that administrative remedies have not been exhausted, the unexhausted claim should 20 be dismissed without prejudice. See id. at 1120; see also Jones v. Bock, 127 S.Ct. 910 (2007). 21 22 III. DISCUSSION 23 In their motion, defendants argue among other things: (1) plaintiff’s action is 24 barred; and (2) plaintiff failed to exhaust administrative remedies prior to bringing suit. Plaintiff 25 has not filed an opposition to the motion. 26 /// 4 1 2 A. Relationship to Habeas Defendants argue that this action is barred under Heck v. Humphrey, 512 U.S. 477 3 (1994), because success on the merits of plaintiff’s due process claim would necessarily imply 4 the invalidity of a prison disciplinary outcome that has not previously been invalidated. When a 5 state prisoner challenges the legality of his custody and the relief he seeks is a determination that 6 he is entitled to an earlier or immediate release, such a challenge is not cognizable under 42 7 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ of habeas corpus. 8 See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 131 F.3d 818, 824 9 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam). 10 Thus, where a § 1983 action seeking monetary damages or declaratory relief alleges 11 constitutional violations which would necessarily imply the invalidity of the prisoner’s 12 underlying conviction or sentence, or the result of a prison disciplinary hearing, such a claim is 13 not cognizable under § 1983 unless the conviction or sentence has first been invalidated on 14 appeal, by habeas petition, or through some similar proceeding. See Edwards v. Balisok, 520 15 U.S. 641, 646 (1987) (holding that § 1983 claim not cognizable because allegations of procedural 16 defects and a biased hearing officer implied the invalidity of the underlying prison disciplinary 17 sanction); Heck v. Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that § 1983 not 18 cognizable because allegations were akin to malicious prosecution action which includes as an 19 element a finding that the criminal proceeding was concluded in plaintiff’s favor); Butterfield v. 20 Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997) (concluding that § 1983 claim not cognizable 21 because allegations of procedural defects were an attempt to challenge substantive result in 22 parole hearing); cf. Neal, 131 F.3d at 824 (concluding that § 1983 claim was cognizable because 23 challenge was to conditions for parole eligibility and not to any particular parole determination). 24 In particular, where the claim involves loss of good-time credits as a result of an adverse prison 25 disciplinary finding, the claim is not cognizable. See Blueford v. Prunty, 108 F.3d 251, 255 (9th 26 Cir. 1997). If a § 1983 complaint states claims which sound in habeas, the court should not 5 1 convert the complaint into a habeas petition. See id.; Trimble, 49 F.3d at 586. Rather, such 2 claims must be dismissed without prejudice and the complaint should proceed on any remaining 3 cognizable § 1983 claims. See Balisok, 520 U.S. at 649; Heck, 512 U.S. at 487; Trimble, 49 4 F.3d at 585. 5 In this case, plaintiff alleges various procedural violations with respect to a prison 6 disciplinary hearing. The question is whether plaintiff’s challenge necessarily touches on the 7 legality of his custody. The court finds that it does not because plaintiff does not allege loss of 8 any good-time credits or seek restoration of such credits. 9 B. 10 Exhaustion Defendants next argue that plaintiff’s due process claim is unexhausted. Prisoners 11 seeking relief under § 1983 must exhaust all available administrative remedies prior to bringing 12 suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory regardless of the relief sought. 13 See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling Rumbles v. Hill, 182 F.3d 1064 (9th 14 Cir. 1999)). Because exhaustion must precede the filing of the complaint, compliance with § 15 1997e(a) is not achieved by exhausting administrative remedies while the lawsuit is pending. 16 See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The Supreme Court recently 17 addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and held: (1) 18 prisoners are not required to specially plead or demonstrate exhaustion in the complaint because 19 lack of exhaustion is an affirmative defense which must be pleaded and proved by the 20 defendants; (2) an individual named as a defendant does not necessarily need to be named in the 21 grievance process for exhaustion to be considered adequate because the applicable procedural 22 rules that a prisoner must follow are defined by the particular grievance process, not by the 23 PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not 24 all, claims are unexhausted. 25 /// 26 /// 6 1 The Supreme Court also held in Woodford v. Ngo that, in order to exhaust 2 administrative remedies, the prisoner must comply with all of the prison system’s procedural 3 rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, 4 exhaustion requires compliance with “deadlines and other critical procedural rules.” Id. at 90. 5 Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance 6 which affords prison officials a full and fair opportunity to address the prisoner’s claims. See id. 7 at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the 8 quantity of prisoner suits “because some prisoners are successful in the administrative process, 9 and others are persuaded by the proceedings not to file an action in federal court.” Id. at 94. 10 A prison inmate in California satisfies the administrative exhaustion requirement 11 by following the procedures set forth in §§ 3084.1-3084.7 of Title 15 of the California Code of 12 Regulations. In California, inmates “may appeal any departmental decision, action, condition, or 13 policy which they can demonstrate as having an adverse effect upon their welfare.” Cal. Code 14 Regs. tit. 15, § 3084.1(a). These regulations require the prisoner to proceed through several 15 levels of appeal: (1) informal resolution; (2) formal appeal; (3) second level appeal to institution 16 head; (4) third level appeal to the director of the California Department of Corrections and 17 Rehabilitation. A decision at the third formal level, which is also referred to as the director’s 18 level, is not appealable and concludes a prisoner’s departmental administrative remedy. See Cal. 19 Code Regs. tit. 15, §§ 3084.1(a) and 3084.5(e)(2). Departmental appeals coordinators may 20 summarily reject a prisoner’s untimely administrative appeal. See Cal. Code Regs. tit. 15, §§ 21 3084.3(c)(6) and 3084.6(c) 22 Here, defendants have submitted evidence that the only grievance relating to 23 allegedly improper disciplinary hearing procedures submitted before this action was filed was 24 submitted to prison officials on July 2, 2008. This grievance was screened out as untimely 25 because it was submitted more than 15 days past the date of the alleged incident (May 29, 2008). 26 As defendants correctly note, a procedurally deficient grievance fails to satisfy the exhaustion 7 1 requirement. Because plaintiff has failed to exhaust his administrative remedies prior to filing 2 suit, this action must be dismissed. 3 4 5 6 IV. CONCLUSION Based on the foregoing, the undersigned recommends that defendants’ unopposed motion to dismiss (Doc. 55) be granted. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court. Responses to objections shall be filed within 14 days after service of 11 objections. Failure to file objections within the specified time may waive the right to appeal. 12 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 16 DATED: July 28, 2010 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 8
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