-GGH (TEMP)(PC) Walker v. Whitten et al, No. 2:2009cv00642 - Document 52 (E.D. Cal. 2011)

Court Description: ORDER signed by Judge William B. Shubb on 4/14/11, ORDERING that 45 the findings and recommendations are ADOPTED, except to the extent that they rely on section 3084.9(i) of Title 15 of the CA Code of Regulations. Defendants' 23 motion to dismiss is DENIED. This action is dismissed as against defendant Moore due to plaintiff's failure to prosecute. (Kastilahn, A)
Download PDF
-GGH (TEMP)(PC) Walker v. Whitten et al Doc. 52 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---11 12 13 14 NO. CIV. 2:09-642 WBS GGH JEFFREY E. WALKER, Plaintiff, ORDER RE: MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS v. 15 A.H. WHITTEN, et al., 16 Defendants. / 17 18 19 ----oo0oo---Plaintiff Jeffrey E. Walker, a state prison inmate 20 proceeding pro se, initiated this action for claims pursuant to 21 42 U.S.C. § 1983. 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 23 302(c)(17). 24 The matter was referred to a United States On February 9, 2011, the magistrate judge filed 25 findings and recommendations, which were served on all parties 26 and which contained notice to all parties that any objections to 27 the findings and recommendations were to be filed within twenty- 28 1 Dockets.Justia.com one days. 2 magistrate judge’s recommendation that their motion under Federal 3 Rule of Civil Procedure 12(b) to dismiss for plaintiff’s failure 4 to exhaust administrative remedies be denied.2 5 (Docket No. 45.) Defendants1 object to the 1 (Docket No. 49.) In accordance with the provisions of 28 U.S.C. § 6 636(b)(1)(C), this court has conducted a de novo review of this 7 case. 8 adopt the findings and recommendations, except to the extent that 9 they rely on section 3084.9(i) (providing for special procedures Having carefully reviewed the entire file, the court will 10 for staff complaints) of Title 15 of the California Code of 11 Regulations, which was not in effect when plaintiff filed his 12 administrative appeals, and will deny the moving defendants’ 13 motion to dismiss for plaintiff’s failure to exhaust 14 administrative remedies. 15 I. Factual and Procedural Background As pertinent to the motion, plaintiff filed a grievance 16 17 1 18 19 20 21 22 23 24 25 26 27 28 Defendants Whitten, Greer, Protivinsky, and Brewer brought the motion to dismiss. The objections do not specify which of the moving defendants object to the magistrate judge’s findings and recommendations, so the court assumes that all moving defendants object. In their objections, defendants do not distinguish among themselves. In other words, defendants do not argue that plaintiff failed to exhaust administrative remedies as to a particular defendant for a reason different from the reason that plaintiff failed to exhaust for the other defendants. Thus, this court’s Order does not distinguish among the defendants with respect to exhaustion. 2 The magistrate judge also recommended dismissal as to defendant Moore because plaintiff did not comply with an order to return the USM-285 form and a copy of the Complaint in order to facilitate service on defendant Moore. (See Feb. 9, 2011, Findings & Recommendations at 13:3-6 (Docket No. 45).) Plaintiff did not file an objection to the findings and recommendations. Accordingly, the court will adopt the findings and recommendations with regard to dismissal of this action as against defendant Moore. 2 1 in November of 2008 for improper searches, retaliation, and 2 deliberate indifference to plaintiff’s psychiatric history in 3 2007 and 2008. 4 misconduct stemmed from the dismissal of a rules violation report 5 in 2007. 6 (“Lewis Decl.”) Ex. C at 28-293 (Docket No. 23-4).) Plaintiff alleges that the alleged staff (See Lewis Decl. in Supp. of Defs.’ Mot. to Dismiss The grievance was categorized as a “staff complaint.” 7 8 At the second level of the inmate appeals process, plaintiff 9 received a response informing him that his administrative appeal 10 was partially granted and that an investigation was conducted, 11 but the investigation found that the allegations were 12 unsubstantiated. 13 administrative appeal at the director’s level. 14 before plaintiff received a response at the director’s level, 15 plaintiff filed the instant action in this court. 16 received a response at the director’s level denying his appeal in 17 May of 2009. 18 II. (Id. Ex. C at 32-33.) Plaintiff then filed an In March of 2009, Plaintiff (Id. Ex. C at 26-27.) Discussion 19 A prisoner may not bring a § 1983 claim “until such 20 administrative remedies as are available are exhausted.” 42 21 U.S.C. § 1997e(a). 22 requirement before filing the complaint. 23 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam). 24 need not plead or prove exhaustion; a plaintiff’s failure to 25 exhaust is an affirmative defense that must be raised and proved 26 by the defendant. The prisoner must satisfy the exhaustion See McKinney v. Carey, A plaintiff See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th 27 3 28 The page numbers are those assigned by the court’s CM/ECF system. 3 1 Cir. 2003). A defendant may move to dismiss for a plaintiff’s 2 failure to exhaust pursuant to Federal Rule of Civil Procedure 3 Rule 12(b). 4 the pleadings and decide disputed issues of fact. 5 1119-20. 6 prejudice. In deciding the motion, the court may look beyond See id. at Failure to exhaust requires dismissal without Id. at 1120. Exhaustion is mandatory regardless of the form of 7 8 relief sought by the prisoner. See Booth v. Churner, 532 U.S. 9 731, 739 (2001) (prisoners are obligated to navigate all of a 10 prison’s administrative process “regardless of the fit between a 11 prisoner’s prayer for relief and the administrative remedies 12 possible”), overruling Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 13 1999). 14 levels of review once he has either received all ‘available’ 15 remedies at an intermediate level of review or been reliably 16 informed by an administrator that no remedies are available.” 17 Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). 18 However, “a prisoner need not press on to exhaust further Because “there can be no ‘absence of exhaustion’ unless 19 some relief remains ‘available,’ a defendant must demonstrate 20 that pertinent relief remained available.” 21 Pertinent relief may remain available “at unexhausted levels of 22 the grievance process or through awaiting the results of the 23 relief already granted as a result of that process.” 24 Evidence that the defendant may use to meet his burden includes 25 “statutes, regulations, and other official directives that 26 explain the scope of the administrative review process; 27 documentary or testimonial evidence from prison officials who 28 administer the review process; and information provided to the 4 Id. at 936-37. Id. at 937. 1 prisoner concerning the operation of the grievance procedure.” 2 Id. 3 informs [the court’s] determination of whether relief was, as a 4 practical matter, ‘available.’” The latter category of evidence is relevant because “it 5 Id. (emphasis added). Here, when plaintiff filed his administrative appeals, 6 an inmate in California could file administrative appeals 7 following the procedures found in sections 3084.1 through 3084.7 8 of Title 15 of the California Code of Regulations.4 9 regulations in effect at the time, a prisoner “[could] appeal any Under the 10 departmental decision, action, condition, or policy which they 11 [could] demonstrate as having an adverse effect upon [his] 12 welfare.” 13 set forth four levels of appeal: (1) informal level, in which the 14 prisoner and the staff attempted to resolve the issue; (2) first 15 formal level, usually conducted by the institution’s appeals 16 coordinator; (3) second formal level, conducted by the 17 institution’s head; (4) and third formal level, conducted by the 18 director of the California Department of Corrections and 19 Rehabilitation (“Department”). Cal. Code Regs. tit. 15, § 3084.1(a). The regulations Defendants have provided the Department’s 20 21 22 23 24 25 26 27 28 4 Emergency regulations are currently in effect that amend and add sections to the regulations that were in effect when plaintiff filed his administrative appeals. The emergency regulations can be found at sections 3084.1 through 3084.9 of Title 15 of the California Code of Regulations. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.9. While the amended regulations provide additional support to deny defendants’ motion, the court will not adopt the magistrate judge’s findings and recommendations to the extent that they rely on regulations as amended because they were not in effect when plaintiff filed his administrative appeals. (See Feb. 9, 2011, Findings & Recommendations at 6:21-23, 7:19-21, 9 n.5.) 5 1 Administrative Bulletin, issued on August 21, 1998, governing the 2 processing of appeals that allege staff misconduct. 3 Pro Tunc Req. for Extension of Time to File Ex. A 4 (“Administrative Bulletin”) (Docket No. 50).) 5 has described this Bulletin as reflecting a procedure in which 6 the only remedy available for an appeal categorized as a “staff 7 complaint” is an investigation into the alleged staff misconduct. 8 Brown, 422 F.3d at 937-39. 9 complaints which allege any misconduct by a staff member shall be (Defs.’ Nunc The Ninth Circuit The Bulletin provides that “ALL 10 logged by the appeals coordinator as a Staff Complaint.” 11 (bold in original).) 12 (Id. The Bulletin states that if a staff complaint “warrants 13 a formal . . . investigation,” then the second level response 14 “shall note that the appeal was granted or partially granted 15 (depending upon the action requested by the appellant).” (Id. § 2 16 (emphasis added).) 17 granted suggests that an investigation is the only remedy 18 available to a prisoner alleging staff misconduct: 19 appeal directed to the staff complaint procedure is given a 20 ‘granted’ or ‘partially granted’ response depends not on whether 21 there remains some possibility of obtaining relief through the 22 appeals process, but on ‘the action requested by the appellant.’” 23 Brown, 422 F.3d at 939. 24 The Bulletin’s definition of partially “Whether an The response at the second level that plaintiff 25 received for his staff complaint is consistent with the Bulletin. 26 (See Lewis Decl. Ex. C at 32.) 27 appeal was partially granted at the second level and that an The response stated that the 28 6 1 investigation into the allegations had been conducted. 2 response informed plaintiff that the investigation revealed no 3 evidence to support his allegations. 4 The The response noted that plaintiff sought additional 5 remedies beyond an investigation into alleged staff misconduct, 6 such as disciplinary action, a restraining order, and that the 7 staff be professional in their interactions with plaintiff. 8 Important to this motion, the response suggests that no further 9 remedies were available: “Although you have the right to submit a 10 staff complaint, a request for administrative action regarding 11 staff or the placement of documentation in a staff member’s 12 personnel file is beyond the scope of the staff complaint 13 process.” 14 level, which defendants argue plaintiff was required to receive 15 before filing the instant action, confirms that no further 16 remedies remained available once an investigation was ordered and 17 contained this same language quoted above. 18 (Id. Ex C at 33.) The response at the director’s (Id. Ex. C at 26.). Relying on Brown, a number of courts have found that an 19 appeal of a complaint categorized as a “staff complaint” was 20 exhausted once an investigation was ordered.5 21 Williams, No. CIV S-09-0505 MCE CMK, 2010 WL 4880657, at *6 (E.D. 22 Cal. Nov. 23, 2010) (magistrate judge’s findings and 23 recommendations), adopted by No. 2:09-cv-00505 MCE CMK, 2011 WL 24 346536 (E.D. Cal. Feb. 1, 2011); Cottrell v. Wright, No. CIV 25 S-09-824 JAM KJM, 2010 WL 4806910, at *5 (E.D. Cal. Nov. 18, See, e.g., Lugo v. 26 5 27 28 Inexplicably, despite the magistrate judge expressly relying on Brown, (see Feb. 9, 2011, Findings & Recommendations at 7:16-9:7), defendants have not even cited Brown in their objections. 7 1 2010) (magistrate judge’s findings and recommendations), adopted 2 by No. CIV S-09-0824 JAM DAD, 2011 WL 319080 (E.D. Cal. Jan. 28, 3 2011); Aubert v. Elijah, No. 1:07-cv-01629 LJO GSA, 2010 WL 4 3341915, at *7 (E.D. Cal. Aug. 24, 2010) (magistrate judge’s 5 findings and recommendations), adopted by No. 1:07-cv-01629 LJO 6 GSA, 2010 WL 3825609 (E.D. Cal. Sept. 28, 2010); Lees v. Felker, 7 No. CIV S-08-196 KJM, 2010 WL 2353517, at *4 (E.D. Cal. June 9, 8 2010) (magistrate judge’s order); Foster v. Verkouteren, Civil 9 No. 08cv0554, 2009 WL 2485369, at *5 (S.D. Cal. Aug. 12, 2009) 10 (magistrate judge’s order), aff’d on other grounds, No. 09-56396, 11 2010 WL 4813674 (9th Cir. Nov. 23, 2010); Kidd v. Biggs, No. CV 12 01:06-1098 BLW MHW, 2009 WL 2151836, at *4 (E.D. Cal. July 16, 13 2009) (magistrate judge’s findings and recommendations), adopted 14 by No. 1:06-CV-1098 BLW MHW, 2009 WL 3157536 (E.D. Cal. Sept. 28, 15 2009); Ransom v. Rojas, No. 1:05-cv-00283 AWI GSA, 2008 WL 16 4640619, at *4 (E.D. Cal. Oct. 16, 2008) (declining to adopt 17 magistrate judge’s findings and recommendations); Harris v. Duc, 18 No. CIV S-06-2138 JAM DAD, 2008 WL 3850214, at *5 (E.D. Cal. Aug. 19 15, 2008) (magistrate judge’s findings and recommendations), 20 adopted by No. CIV S-06-2138 JAM DAD, 2008 WL 4463604 (E.D. Cal. 21 Oct. 02, 2008); Lay v. Marrow, No. CIV S-07-0711 JAM GGH, 2008 WL 22 2954185, at *7 (E.D. Cal. July 30, 2008) (magistrate judge’s 23 findings and recommendations). 24 In this case, unlike in Brown, plaintiff was informed 25 in the response at the second level that allegations of staff 26 misconduct “do not limit or restrict the availability of further 27 relief via the inmate appeals process” and that he must submit 28 the staff complaint appeal through the director’s level to 8 1 exhaust his administrative remedies. (See Lewis Decl. Ex. C at 2 33.) 3 Brown have dealt with this same language in a response and did 4 not find that it was sufficient to meet the defendant’s burden. 5 See Cottrell, 2010 WL 4806910, at *5; Aubert, 2010 WL 3341915, at 6 *7; Lees, 2010 WL 2353517, at *4; Foster, 2009 WL 2485369, at *5. 7 This court agrees that this language is insufficient to 8 meet defendants’ burden of “demonstrat[ing] that pertinent relief 9 remained available.”6 Many of the courts that have found exhaustion relying on Brown, 422 F.3d at 936-37. First, 10 information provided to an inmate is relevant to the issue of 11 whether the remedies were available as a practical matter, not 12 whether remedies were in fact available. 13 (explaining the relevancy of information provided to an inmate). 14 Second, even if this language were relevant to the issue of 15 whether a remedy was in fact available, this language is not 16 sufficient to meet defendants’ burden in light of contradictory 17 information provided in the same response at the second level and 18 in the response at the director’s level. 19 confirms that no additional remedies were available. 20 Cf. id. at 937 Moreover, the Bulletin In seeming recognition that this language will not 21 6 22 23 24 25 26 27 28 The court recognizes that some courts have either expressly distinguished Brown based on this language or, while not citing Brown, relied on this language to find lack of exhaustion. See, e.g., McGinnis v. Elijah, Civil No. 1:08cv0793 IEG, 2009 WL 2244188, at *3 (E.D. Cal. July 27, 2009) (distinguishing Brown); Velasquez v. Elhendie, No. 2:07-cv-02419 HDM RAM, 2009 WL 1357420, at *2 (E.D. Cal. May 13, 2009) (same); Treglia v. Cal. Dep’t of Corr. & Rehab., No. CIV S-07-0444 EFB, 2009 WL 700242, at *4 (E.D. Cal. Mar.13, 2009) (magistrate judge’s order) (although not citing Brown, relying on this language); Robinson v. Heyward, No. CIV S-07-0729 JAM DAD, 2008 WL 2875794, at *3 (E.D. Cal. July 24, 2008) (magistrate judge’s findings and recommendations) (although not citing Brown, relying on this language). 9 1 suffice, defendants have presented supplemental evidence to 2 support their objections to the magistrate judge’s findings and 3 recommendations. 4 additional remedies were in fact available to plaintiff beyond an 5 investigation into his allegations of staff misconduct. 6 evidence would contradict the Bulletin and portions of the 7 responses. 8 an appeal to the Director’s level might have netted additional 9 relief to Brown, he produced no evidence--which would have had to 10 11 The supplemental evidence attempts to show that This See Brown, 422 F.3d at 939 (“While Valoff argues that contradict his own directives--that it could have.”). In a supplemental declaration, D. Foston, Chief of the 12 Inmate Appeals Branch (“IAB”) of the Department, states that a 13 director’s level response could have provided the following four 14 forms of relief from IAB: (1) a recommendation that the inmate be 15 transferred if not appropriately housed, (2) an order that the 16 institution amend its strip search policy or holding cell policy 17 to come into compliance with regulation or policy, (3) an order 18 for another investigation to ensure all issues and allegations 19 were appropriately addressed if the IAB found that the staff 20 misconduct investigation was conducted improperly or was 21 insufficient, and (4) a referral for a mental health evaluation 22 if it had not already been completed. 23 Findings & Recommendations on Defs.’ MTD Attachment (Supplemental 24 Foston Decl. on Defs.’ MTD) ¶ 8 (Docket No. 49).) 25 (Defs.’ Objections to With respect to transferring plaintiff if not 26 appropriately housed, the Ninth Circuit’s description of the 27 evidence in Brown is instructive: 28 It is clear, for example, from the Department’s general 10 1 2 3 4 5 6 7 directives and from its responses in this case, that only after the staff misconduct investigation, through which Brown’s allegations were considered, would the Department of Corrections have determined whether Valoff’s transfer to another institution was appropriate. Those documents emphasize that all investigations into staff misconduct are to take place through the staff complaint process; that the choice of relief in the event a complaint is sustained is up to the Department; and that the results of the staff complaint process are confidential. For similar reasons, any transfer of Brown because of Valoff’s behavior would depend on sustaining the complaints about that behavior and thus could not come through the appeals process. 8 Brown, 422 F.3d at 939. Thus, despite Foster’s supplemental 9 declaration to the contrary, the evidence suggests that plaintiff 10 could be transferred only through the staff complaint process, 11 which plaintiff’s staff complaint initiated, and not through the 12 inmate appeals process. 13 That the Department’s director could have changed the 14 institution’s policy on searches or holding cells or ordered a 15 mental health evaluation does not prove that additional remedies 16 were available because plaintiff’s grievance did not pertain to 17 these subjects. See id. at 940 (“Brown did not, however, 18 complain about the pepper spray policy; rather, his complaint was 19 that the policy had been violated. As Brown’s grievance in no 20 way challenged the pepper spray policy, we can conceive no reason 21 the Director would reconsider that policy in response to Valoff’s 22 grievance.”) (citing Booth, 532 U.S. at 736 n.4 (“Without the 23 possibility of some relief, the administrative officers would 24 presumably have no authority to act on the subject of the 25 complaint, leaving the inmate with nothing to exhaust.”) 26 (emphasis added)). 27 Lastly, Foster’s statement that the director could have 28 11 1 ordered an additional investigation if it determined that the 2 first investigation was insufficient or improperly conducted is 3 contradicted by the response at the director’s level that simply 4 evaluated whether an investigation had been conducted. 5 Accordingly, the moving defendants have not met their burden of 6 “demonstrat[ing] that pertinent relief remained available.” 7 Brown, 422 F.3d at 936-37. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed February 9, 10 2011, are adopted, except to the extent that they rely on section 11 3084.9(i) of Title 15 of the California Code of Regulations; 2. 12 The moving defendants’ motion to dismiss for 13 plaintiff’s failure to exhaust administrative remedies is DENIED 14 as to claims that defendants Whitten, Greer, Protivinsky, and 15 Brewer conducted or allowed improper searches for the purposes of 16 harassment, retaliation, and deliberate indifference to 17 plaintiff’s mental health in 2007 and 2008; and 3. 18 This action is dismissed as against defendant Moore 19 due to plaintiff’s failure to prosecute. 20 DATED: April 14, 2011 21 22 23 24 25 26 27 28 12