(PC) Locklear v. Schwiner et al, No. 2:2009cv02594 - Document 34 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 9/14/10 ORDERING that Clerk is directed to assign this action to a United States District Judge; recommending that 19 MOTION to DISMISS be granted; and Defendant Clay be dismissed from this action. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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(PC) Locklear v. Schwiner et al Doc. 34 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CLIFFORD LOCKLEAR, 11 Plaintiff, 12 13 No. 2:09-cv-2594-JFM (PC) vs. DR. SCHWINER, et al., 14 ORDER AND Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. This action is proceeding on claims raised against three defendants in 18 plaintiff’s original complaint, filed September 16, 2009. This matter is before the court on the 19 motion of one of those defendants, Sergeant Clay, for dismissal pursuant to the unenumerated 20 provisions of Fed. R. Civ. P. 12(b). Defendant Clay contends that plaintiff failed to exhaust 21 administrative remedies with respect to the claim raised against him as required by 42 U.S.C. § 22 1997e(a). On November 24, 2009, the court advised plaintiff of the requirements for opposing a 23 motion to dismiss for failure to exhaust administrative remedies pursuant to the unenumerated 24 provisions of Fed. R. Civ. P. 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 25 2003). 26 ///// 1 Dockets.Justia.com 1 “Section 1997e(a) of Title 42 of the United States Code provides: 2 No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 3 4 5 This exhaustion requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001).” 6 McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. Dec. 5, 2002). Exhaustion must precede the 7 filing of the complaint; compliance with the statute is not achieved by satisfying the exhaustion 8 requirement during the course of an action. Id. at 1200. Claims dismissed for failure to exhaust 9 administrative remedies should be dismissed without prejudice. Id. 10 In Jones v. Bock, 549 U.S. 199, 218 (2007), the United States Supreme Court held 11 “that a prison’s own grievance process, not [42 U.S.C. § 1997e(a)], determines how detailed a 12 grievance must be to satisfy” the statutory requirement. Griffin v. Arpaio, 557 F.3d 1117, 1120 13 (9th Cir. 2009). In Griffin, the United States Court of Appeals for the Ninth Circuit held that 14 “when a prison’s grievance procedures are silent or incomplete as to factual specificity, ‘a 15 grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.’” 16 Id. at 1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). “The primary purpose 17 of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay 18 groundwork for litigation.” Id. 19 20 21 22 23 24 25 26 California’s Department of Corrections provides a four-step grievance process for prisoners who seek review of an administrative decision or perceived mistreatment. Within fifteen working days of “the event or decision being appealed,” the inmate must ordinarily file an “informal” appeal, through which “the appellant and staff involved in the action or decision attempt to resolve the grievance informally.” Cal.Code Regs., tit. 15, §§ 3084.5(a), 3084.6(c). [Footnote omitted.] If the issue is not resolved during the informal appeal, the grievant next proceeds to the first formal appeal level, usually conducted by the prison’s Appeals Coordinator. Id. §§ 3084.5(b), 3084.6(c). Next are the second level, providing review by the institution's head or a regional parole administrator, and the third level, in which review is conducted by a designee of the Director of the Department of Corrections. [Footnote omitted.] Id. § 3084.5(e)(1)-(2). 2 1 Brown v. Valoff, 422 F.3d 926, 929-30 (9th Cir. 2005). Department regulations provide that the 2 “informal level is waived for a variety of grievances, including those concerning ‘alleged 3 misconduct by a departmental peace officer.’ Cal. Code Regs. tit. 15, § 3084.5(a)(3)(G).” 4 Brodheim v. Cry, 584 F.3d 1262, 1265 (9th Cir. 2009). 5 Plaintiff’s complaint contains the following allegations. Defendants C/O 6 Solorzano and Sgt. Orrick had plaintiff removed from his job assignment under false pretenses, 7 and for two days told plaintiff nothing because they knew he was a mental patient, knowing that 8 the circumstances would cause plaintiff to “blow up and hurt [him]self and others” and he cut his 9 wrists. Complaint, filed September 16, 2009, at 4. Plaintiff “begged” defendant Clay to take 10 plaintiff to “the hole” and told defendant Clay he was becoming psychotic, but defendant Clay 11 told plaintiff he didn’t “give a damn about your psychotic.” Id. Plaintiff alleges that “[t]his was 12 a coordinated effort with other staff to hurt” him, and that there was an “intentional failure to 13 intervene or attempt to stop misconduct by staff.” Id. 14 15 16 17 On January 15, 2009, plaintiff submitted an inmate grievance which contained the following allegations: On the 15th or 16th December, I was told to pack my property I was to move to Bldg. 11. I told my supervisor C/O Solorzano, I thought this was a mistake, it should also be noted that I am the leadman porter on 3rd watch in Bldg. 8. 18 21 The next day I talked to Segt. Orrick, about the mistake[.] She said it would be taken care of, then I was feeling a little paranoia, then I started trippin [sic] emotionally about what had happened to me, I could not take it anymore this is when I tryed [sic] to hurt myself. I have not had a disciplinary write-up in ten years, this is a disregard for inmates rights as well as violation of federal law. 22 Take Note Locklear is C.C.C.M.S. 19 20 23 Ex. B to Declaration of Santos Cervantes in Support of Defendant Clay’s Motion to Dismiss, 24 filed March 17, 2010, at 4. The grievance was bypassed at the informal level of review. Id. It 25 was denied at the first level of review and partially granted at the second level of review. Id. at 26 3-4. In his request for Director’s Level Review of the grievance, plaintiff alleged: 3 1 For 3 days know [sic] one told me anything, why I moved, nor did they tell other staff that I was mentally ill. This was retaliation on behalf of custody. This was intentional failure to intervene or attempt to stop misconduct before it got out of hand. [Undecipherable] it all kill me and they said going right ahead so I cut my wrist.” 2 3 4 5 Id. at 3.1 6 The allegations of plaintiff’s inmate grievance were not sufficient to alert prison 7 officials to the nature of plaintiff’s alleged problem with defendant Clay. Plaintiff gave no 8 indication in the grievance that correctional staff other than defendant Solorzano and Orrick had 9 been involved the events complained of and the allegations of the grievance do not suggest that 10 he had told any member of the correctional staff other than those two that he was becoming 11 psychotic or that he wanted to be taken to administrative segregation. 12 For the foregoing reasons, this court finds that plaintiff failed to exhaust 13 administrative remedies with respect to his claim against defendant Clay prior to filing this 14 action. Accordingly, defendant Clay’s motion to dismiss should be granted and defendant Clay 15 should be dismissed from this action. 16 17 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign this action to a United States District Judge; and 18 IT IS HEREBY RECOMMENDED that: 19 1. Defendant Clay’s March 17, 2010 motion to dismiss be granted; and 20 2. Defendant Clay be dismissed from this action. 21 These findings and recommendations are submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 23 days after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 1 26 Plaintiff also added additional allegations in his request for Second Level Review, but those allegations are plainly unrelated to his claim against defendant Clay. 4 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 objections shall be filed and served within fourteen days after service of the objections. The 3 parties are advised that failure to file objections within the specified time may waive the right to 4 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 DATED: September 14, 2010. 6 7 8 9 10 12 lock2594.mtd 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5