(PC) Walker v. Cate et al, No. 2:2010cv01093 - Document 21 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/19/11 RECOMMENDING that 11 MOTION to DISMISS be granted; and this action be dismissed without prejudice; 2 Prisoner Civil Rights Complaint referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 21 days.(Dillon, M)
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(PC) Walker v. Cate et al Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DENNIS WALKER, 11 Plaintiff, 12 No. 2:10-cv-1093 GEB KJN P vs. 13 MATTHEW CATE, et al., 14 Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff Dennis Walker is a state prisoner at the California Medical Facility 17 (“CMF”) in Vacaville, California, proceeding without counsel, in this civil rights action filed 18 pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff’s First Amended Complaint filed 19 June 3, 2010. (Dkt. No. 6.) Pending is defendants’ motion to dismiss this action for failure to 20 exhaust administrative remedies. For the following reasons, the court recommends that 21 defendants’ motion be granted. 22 I. Background 23 Plaintiff challenges application of the inmate “Integrated Housing Program” 24 (“IHP”), implemented in 2008 by the California Department of Corrections and Rehabilitation 25 //// 26 //// 1 Dockets.Justia.com 1 (“CDCR”), on the ground that it forces racial integration pursuant to prisoner cell assignments.1 2 See Cal. Code. Regs., art. 47, §§ 54055.1 et seq. The named defendants are CDCR Secretary 3 Matthew Cate, and CMF Warden Kathleen Dickinson. Plaintiff states that he is an Aryan 4 Christian/Odinist, ethnically white without gang affiliation, who may be injured if he is celled 5 with an inmate of another race and/or religion. Plaintiff alleges that when he refused a 6 cell-integration order on October 7, 2008, with a “non-Aryan Muslim,” he was found guilty 7 pursuant to a CDC-115 disciplinary rules violation report, lost good time credits, and was placed 8 in administrative segregation. Although plaintiff thereafter obtained a classification excluding 9 him from an integrated cell assignment, it was rescinded. Plaintiff contends that the application 10 of the IHP violates plaintiff’s right to the free exercise of his religion protected by the First 11 Amendment of the United States Constitution, and the Religious Land Use and Institutionalized 12 Persons Act (“RLUIPA”), his Eighth Amendment right against cruel and unusual punishment, 13 his Fourteenth Amendment rights to equal protection and due process, and his Fifth Amendment 14 right to due process. (FAC at 5-6).2 Plaintiff seeks damages, as well as declaratory and 15 injunctive relief. 16 II. Legal Standards 17 A. Failure to State a Cognizable Claim 18 The Federal Rules of Civil Procedure authorize motions to dismiss for “failure to 19 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a 20 motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as 21 true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and 22 1 23 24 25 26 Plaintiff originally filed this action in tandem with another plaintiff, Ronald Glover, who is incarcerated at Folsom State Prison. The cases were severed by order filed May 4, 2010. (Dkt. No. 1.) Mr. Glover now proceeds on similar claims in Glover v. Cate et al., Case No. 2:10-cv-430 GEB KJN P, also pending before the undersigned. On July 13, 2011, this court issued Findings and Recommendations, recommending that Glover v. Cate be dismissed for failure to state a cognizable claim. (Id., Dkt. No. 29.) 2 Citations to the record reflect the court’s electronic pagination. 2 1 construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 2 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). In order to 3 survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic 4 recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to 5 raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 6 544, 554 (2007). However, “[s]pecific facts are not necessary; the statement [of facts] need only 7 give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” 8 Erickson, 551 U.S. 89 (internal citations omitted). 9 A motion to dismiss for failure to state a claim should not be granted unless it 10 appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which 11 would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro 12 se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 13 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. 14 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s 15 liberal interpretation of a pro se complaint may not supply essential elements of the claim that 16 were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 17 18 B. Administrative Exhaustion The Prison Litigation Reform Act (“PLRA”) provides that, “[n]o action shall be 19 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by 20 a prisoner confined in any jail, prison, or other correctional facility until such administrative 21 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners must exhaust their 22 administrative remedies regardless of the relief they seek. Booth v. Churner, 532 U.S. 731, 741 23 (2001). Such exhaustion requires that the prisoner complete the administrative review process in 24 accordance with all applicable procedural rules and deadlines, Woodford v. Ngo, 548 U.S. 81, 25 85-86 (2006) (summary of administrative review process in California prisons), which in 26 California requires that a prisoner pursue his administrative grievance through the Third 3 1 (Director) Level Review. Id. at 85; Bovarie v. Giurbino, 421 F. Supp. 2d 1309, 1314-15 (S.D. 2 2006). 3 The PLRA requires that a prisoner’s administrative remedies be exhausted prior to 4 filing suit. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) (per curiam). While a plaintiff 5 may add newly exhausted and related claims to an existing action, see Rhodes v. Robinson, 621 6 F.3d 1002 (9th Cir. 2010) (authorizing amended complaint containing newly exhausted claims 7 based on related conduct that occurred after the filing of the original complaint), “a prisoner must 8 exhaust his administrative remedies for the claims contained within his complaint before that 9 complaint is tendered to the district court,” id. at 1004, citing McKinney, supra, 311 F.3d at 10 1199, and Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). 11 The exhaustion requirement applies to all section 1983 claims regardless whether 12 the prisoner files his claim in state or federal court. Johnson v. Louisiana ex rel. Louisiana Dept. 13 of Public Safety and Corrections, 468 F.3d 278 (5th Cir. 2006). However, the exhaustion 14 requirement is not jurisdictional, but an affirmative defense that may be raised by a defendant in 15 a non-enumerated Rule 12(b) motion. See Jones v. Bock, 549 U.S. 199, 216 (2007) (“inmates 16 are not required to specially plead or demonstrate exhaustion in their complaints”); Wyatt v. 17 Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). 18 Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to 19 do so waives the defense. Id. at 1119 n.13, and related text. 20 “In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the 21 court may look beyond the pleadings and decide disputed issues of fact.” Wyatt, 315 F.3d at 22 1119. “I[f] the district court looks beyond the pleadings to a factual record in deciding the 23 motion to dismiss for failure to exhaust—a procedure closely analogous to summary 24 judgment—then the court must assure that [the prisoner] has fair notice of his opportunity to 25 develop a record.” Id. at 1120 n.14. However, when the district court concludes that the prisoner 26 has not exhausted administrative remedies on a claim, “the proper remedy is dismissal of the 4 1 claim without prejudice.” Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2 2005) (“mixed” complaints may proceed on exhausted claims). Thus, “if a complaint contains 3 both good and bad claims, the court proceeds with the good and leaves the bad.” Jones, 549 U.S. 4 at 221. 5 III. Discussion 6 The following chronology is relevant to the pending motion: 7 1. On February 26, 2009, plaintiff filed the first of his two relevant 8 administrative grievances, Log No. CMF-09-0562. (Dkt. No. 15, Exh. A-2.) Pursuant to this 9 grievance, plaintiff sought reclassification from “Racially Eligible for Double Cell Housing” 10 (“RE”), to “Restricted to Own Race” (“RO”). Plaintiff’s request was granted at the First Level 11 Review on March 25, 2009. Plaintiff concedes that he pursued this grievance no further. (Dkt. 12 No. 15 at 2 (“[b]ecause Plaintiff won his 602 Appeal # 09-562 there was no need to pursue the 13 administrative appeal [p]rocess any further”).) 14 15 16 2. Plaintiff filed the initial complaint in this action on February 19, 2010 (Dkt. No. 2), and the operative First Amended Complaint on June 3, 2010 (Dkt. No. 6). 3. On June 11, 2010, plaintiff learned that he had been reclassified as “RE.” 17 (Dkt. No. 15 at 3.) On June 15, 2010, plaintiff filed his second administrative grievance, Log 18 No. CMF-10-1538. (Id., Exh. B.) Pursuant to that grievance, plaintiff stated that he had been 19 improperly designated “RE,” because he was in fact “RO.” (Id., Exh. B-1, B-2.) The grievance 20 was “partially granted” on August 12, 2010, insofar as it was determined that plaintiff would “be 21 scheduled for an appearance before Institution Classification Committee for Resolution of His 22 Integrated Housing Code (IHC).” (Id., Exh. B-1.) As framed in his request for Second Level 23 Review, subsequently filed on October 20, 2010, plaintiff alleged that his reclassification from 24 “RO” to “RE” “was a violation of Res Judicata principals of law, and an abuse of discretion . . . 25 when they completely ignored . . . the previous Appeal Granting of RO Status by the CCII on 26 3/25/09.” (Dkt. No. 17 at 8.) 5 1 4. On November 19, 2010, this court ordered service of the First Amended 2 Complaint on defendants; on January 18, 2011, defendants filed the instant motion to dismiss. 3 5. Plaintiff filed his opposition to the motion to dismiss on February 23, 2011, 4 and, on April 18, 2011, pursuant to court approval (Dkt. No. 18), he filed “newly acquired 5 evidence,” demonstrating exhaustion of his second administrative grievance, Log No. CMF-10- 6 1538. (Dkt. No. 17.) The Director’s Level Decision, rendered March 24, 2011, denied the 7 appeal and required that plaintiff remain classified “RE,” reasoning in pertinent part (id. at 9): 8 9 10 11 12 13 14 The appellant requests that his CDC Form 128-G, Classification Chrono[,] be rewritten with the IHP classification of RO. . . . The Director’s Level of Review (DLR) finds that while the appellant argues that he should be approved to choose his own housing status, the fact remains that there exists a legitimate penological interest in such discretion being delegated to the authority of the warden. This interest is based upon the CDR’s implementation of the IHP which ensures that race is not the sole factor when determining inmate choosing assignments. . . . The DLR finds that appellant’s case factors have been afforded due consideration. The DLR finds that the appellant’s prior grievance and prior status as RO have no bearing on this issue. The DLR finds that . . . the appellant was appropriately classified, and that the RE designation was appropriately documented on his CDC 128-G. 15 16 17 6. Defendants filed a reply to plaintiff’s opposition, and a supplemental reply to plaintiff’s new evidence, on March 3, 2011, and May 10, 2011, respectively. (Dkt. Nos. 16, 19.) 18 This chronology clearly demonstrates that plaintiff failed to exhaust his first 19 administrative grievance, Log No. CMF-09-0562, instead choosing to rely on its favorable 20 outcome at the First Level Review. Thus, plaintiff is precluded from initiating suit based on this 21 unexhausted administrative grievance. 22 This chronology also demonstrates that, while plaintiff exhausted his second 23 administrative grievance, Log No. CMF-10-1538, he did so more than a year after he initiated 24 this action. Administrative exhaustion is required prior to filing suit. McKinney, supra, 311 25 F.3d at 1190-1200; 42 U.S.C. § 1997e(a) (“no action shall be brought . . . until such 26 administrative remedies as are available are exhausted. . . .”) (emphasis added). Thus, this action 6 1 2 may not be premised on plaintiff’s second administrative grievance. Plaintiff makes two arguments in opposition to dismissing this action based on 3 plaintiff’s failure to fully and timely exhaust his administrative grievances before initiating this 4 action. First, plaintiff contends that his second grievance should be viewed as “a continuation” 5 of his first grievance. (Dkt. No. 15 at 3.) Second, plaintiff contends that defendants should be 6 “estopped” from arguing non-exhaustion because “they are responsible for this Plaintiff in not 7 being able to exhaust remedies before his filing of the civil rights complaint.” (Id. at 4.) Plaintiff 8 explains, “[b]ecause the prison officials[’] irr[e]gularities in the case made exhaustion virtually 9 impossible, confusing, non-applicable in facts of this case, the exhaustion remedy was virtually 10 non-available to Plaintiff . . . from 3/25/09 date of #09-562 appeal, until 6/15/10 date of #10-M- 11 153[8] Appeal.” (Id. at 4-5.) Consistent with both arguments, plaintiff contended, in support of 12 his request for Second Level Review in Log No. CMF 10-1538, as follows (Dkt. No. 17 at 8): 13 14 15 16 17 The CMF authorities are intentionally seeking to confuse my Civil Rights Complaint now pending in the Eastern District Court #2-10cv-01093, by discontinuing my Appeal Process by []Granting of the appeal by a CCII counselor, and approval by the Associate Warden, then, changing my Appeal Grant and again giving me a RE Stat[u]s. [¶] I raise the same issues in this inmate appeal that I raised in my 602 appeal originally filed on 2-26-09 . . . I incorp[o]rate by reference the Appeal #09-562 and all of it[]s argu[]ments and complaint into this 602 appeal. This appeal is a continuation of 602 #09-562. 18 19 While the Ninth Circuit has recognized that the PLRA may not require exhaustion 20 when circumstances beyond a prisoner’s control render administrative remedies “effectively 21 unavailable,” Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010); Sapp v. Kimbrell, 623 F.3d 22 813, 822-23 (9th Cir. 2010), such unavailability is generally premised on the failure of prison 23 officials to accord meaningful access to the administrative grievance process, or to provide 24 meaningful review of a prisoner’s grievance. Plaintiff has stated no facts in support of his 25 contention that prison officials prevented him from fully and timely exhausting his administrative 26 grievances, and no such facts may be reasonably inferred from the record. Plaintiff clearly states 7 1 that he chose not to exhaust his first administrative grievance, Log No. CMF-09-0562, because 2 he obtained a favorable result at the First Level Review. Thereafter, plaintiff initiated this action 3 on February 19, 2010, before he learned, on June 11, 2010, that he had been reclassified as “RE,” 4 and hence before he filed his second administrative grievance challenging such reclassification, 5 on June 15, 2010. There is no basis for attributing to prison officials plaintiff’s failure to exhaust 6 his second administrative grievance, Log No. CMF-10-1538, before filing this action. 7 Nor is there any merit to plaintiff’s theory that his two grievances should be read 8 together, or that his second grievance should be construed as a “continuation” of his first 9 grievance. The two matters are unrelated, distinct in time and impact.3 10 The court finds, therefore, that plaintiff failed to exhaust his administrative 11 remedies before bringing the instant action. Accordingly, this action should be dismissed 12 without prejudice. 13 IV. Conclusion 14 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 15 1. Defendants’ motion to dismiss (Dkt. No. 11) be granted; and 16 2. This action be dismissed without prejudice. 17 These findings and recommendations are submitted to the United States District 18 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days 19 after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 "Objections to Magistrate Judge's Findings and Recommendations." Any response to the 22 objections shall be filed and served within 14 days after service of the objections. The parties are 23 3 24 25 26 Moreover, because CDCR’s authority to reassess, at any time, a prisoner’s classification, including his housing status, is generally immune to constitutional challenge, see generally Glover v. Cate et al., Case No. 2:10-cv-430 GEB KJN P (Dkt. No. 29 (Findings and Recommendations)), plaintiff’s effort to “merge” his administrative grievances into one broad constitutional challenge of CDCR’s Integrated Housing Program would likely fail to present a cognizable claim, even had plaintiff’s grievances been properly exhausted. 8 1 advised that failure to file objections within the specified time may waive the right to appeal the 2 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: July 19, 2011 4 5 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 6 7 walk1093.mtd 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9
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