(PC) Schlager v. Miranda, No. 2:2011cv01591 - Document 27 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/16/12 recommending that defendant's unopposed motion to dismiss 20 be granted. MOTION to DISMISS 20 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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(PC) Schlager v. Miranda Doc. 27 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW G. SCHLAGER, 12 13 14 15 16 No. 2:11-CV-1591-JAM-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATIONS R. MIRANDA, Defendant. / 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is defendant’s unopposed motion to dismiss (Doc. 19 20) based on lack of exhaustion of administrative remedies. 20 Prisoners seeking relief under § 1983 must exhaust all available administrative 21 remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory 22 regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling 23 Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of 24 the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies 25 while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The 26 Supreme Court addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and 1 Dockets.Justia.com 1 held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint 2 because lack of exhaustion is an affirmative defense which must be pleaded and proved by the 3 defendants; (2) an individual named as a defendant does not necessarily need to be named in the 4 grievance process for exhaustion to be considered adequate because the applicable procedural 5 rules that a prisoner must follow are defined by the particular grievance process, not by the 6 PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not 7 all, claims are unexhausted. 8 The Supreme Court also held in Woodford v. Ngo that, in order to exhaust 9 administrative remedies, the prisoner must comply with all of the prison system’s procedural 10 rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, 11 exhaustion requires compliance with “deadlines and other critical procedural rules.” Id. at 90. 12 Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance 13 which affords prison officials a full and fair opportunity to address the prisoner’s claims. See id. 14 at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the 15 quantity of prisoner suits “because some prisoners are successful in the administrative process, 16 and others are persuaded by the proceedings not to file an action in federal court.” Id. at 94. 17 A prison inmate in California satisfies the administrative exhaustion requirement 18 by following the procedures set forth in §§ 3084.1-3084.8 of Title 15 of the California Code of 19 Regulations. In California, inmates “may appeal any policy, decision, action, condition, or 20 omission by the department or its staff that the inmate . . . can demonstrate as having a material 21 adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). 22 These regulations require the prisoner to proceed through three levels of appeal. See Cal. Code 23 Regs. tit. 15, §§ 3084.1(b), 3084.2, 3084.7. A decision at the third formal level, which is also 24 referred to as the director’s level, is not appealable and concludes a prisoner’s departmental 25 administrative remedy. See id. Departmental appeals coordinators may reject a prisoner’s 26 administrative appeal for a number of reasons, including untimeliness, filing excessive appeals, 2 1 use of improper language, failure to attach supporting documents, and failure to follow proper 2 procedures. See Cal. Code Regs. tit. 15, §§ 3084.6(b). If an appeal is rejected, the inmate is to 3 be provided clear instructions how to cure the defects therein. See Cal. Code Regs. tit. 15, §§ 4 3084.5(b), 3084.6(a). Group appeals are permitted on the proper form with each inmate clearly 5 identified, and signed by each member of the group. See Cal. Code Regs. tit 15, § 3084.2(h). 6 Currently, California regulations do not contain any provision specifying who must be named in 7 the grievance. 8 9 In certain circumstances, the regulations make it impossible for the inmate to pursue a grievance through the entire grievance process. See Brown v. Valoff, 422 F.3d 926, 939 10 n. 11 (9th Cir. 2005). Where a claim contained in an inmate’s grievance is characterized by 11 prison officials as a “staff complaint” and processed through a separate confidential process, 12 prison officials lose any authority to act on the subject of the grievance. See id. at 937 (citing 13 Booth, 532 U.S. at 736 n. 4). Thus, the claim is exhausted when it is characterized as a “staff 14 complaint.” See id. at 940. If there are separate claims in the same grievance for which further 15 administrative review could provide relief, prison regulations require that the prisoner be notified 16 that such claims must be appealed separately. See id. at 939. The court may presume that the 17 absence of such a notice indicates that the grievance did not present any claims which could be 18 appealed separate from the confidential “staff complaint” process. See id. 19 In this case, defendant argues that there is “no evidence that [plaintiff] exhausted 20 the administrative remedies that were available to him with regard to his . . . claims against 21 defendant. . . .” The court agrees based on plaintiff’s admissions. In the complaint, plaintiff 22 explicitly states that the second level appeal had been submitted on February 14, 2011, and that 23 plaintiff was waiting for a response he expected to arrive by April 2011. Given that the 24 complaint was filed on April 12, 2011 (signed by plaintiff on March 25, 2011), it is obvious that 25 plaintiff did not exhaust all available administrative remedies prior to filing suit. While it is 26 possible that the administrative exhaustion process has since been completed, post-filing 3 1 exhaustion is insufficient as it fails to give the prison an opportunity to correct a potential 2 violation before a lawsuit is filed. 3 4 Based on the foregoing, the undersigned recommends that defendant’s unopposed motion to dismiss (Doc. 20) be granted. 5 These findings and recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court. Responses to objections shall be filed within 14 days after service of 9 objections. Failure to file objections within the specified time may waive the right to appeal. 10 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 13 14 DATED: October 16, 2012 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 4
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