Quiroz v. Woodford et al, No. 5:2005cv02938 - Document 52 (N.D. Cal. 2008)

Court Description: ORDER GRANTING MOTION TO DISMISS. Signed by Judge Jeremy Fogel on 9/9/08. (dlm, COURT STAFF) (Filed on 9/11/2008)
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Quiroz v. Woodford et al Doc. 52 1 2 3 4 5 6 7 8 NOT FOR CITATION 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 MARK ROBERT QUIROZ, Plaintiff, 13 14 vs. 15 ROBERT A. HOREL, et al., 16 Defendants. 17 ) ) ) ) ) ) ) ) ) ) ) No. C 05-02938 JF (PR) ORDER GRANTING MOTION TO DISMISS (Docket No. 30) 18 Plaintiff, a California prisoner proceeding pro se, filed the instant civil rights 19 20 action on July 19, 2005, pursuant to 42 U.S.C. § 1983 against Pelican Bay State Prison 21 (“PBSP”) officials. Before responsive pleadings had been served, Plaintiff filed a first 22 amended complaint on August 11, 2005, and a second amended complaint on November 23 13, 2006. Finding the second amended complaint1, liberally construed, stated cognizable 24 claims, the Court ordered service upon Defendants Warden Robert A. Horel, Dr. Dwight 25 Winslow, Dr. Astorga, Mr. Milliman, Lieutenant Robert Marquez, and Officer 26 Hernandez at PBSP. Defendants filed a motion to dismiss the second amended complaint 27 28 1 The second amended complaint is the operative complaint in this action. Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.05\Quiroz938_grant-mtd (exh).wpd 1 Dockets.Justia.com 1 on numerous grounds, including failure to exhaust administrative remedies. (Docket No. 2 30.) Plaintiff filed file an opposition, and Defendants filed a reply. The Court will now 3 consider the merits of the motion. 4 DISCUSSION 5 6 7 A. Exhaustion of Administrative Remedies Plaintiff alleges that Defendants Winslow, Astoria, Milliman, and Horel failed to 8 provide adequate medical care for his liver condition and failed to notify him of his 9 Hepatitis C condition, which amounts to acting with deliberate indifference to his serious 10 medical needs in violation of the Eighth Amendment. Defendants argue that these 11 medical claims must be dismissed because Plaintiff failed to properly exhaust his 12 administrative remedies with respect to these claims. 13 1. Standard of Review 14 The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e 15 to provide that “[n]o action shall be brought with respect to prison conditions under [42 16 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or 17 other correctional facility until such administrative remedies as are available are 18 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and no longer left to the 19 discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. 20 Churner, 532 U.S. 731, 739 (2001)). “Prisoners must now exhaust all ‘available’ 21 remedies, not just those that meet federal standards.” Id. Even when the relief sought 22 cannot be granted by the administrative process, i.e., monetary damages, a prisoner must 23 still exhaust administrative remedies. Id. at 85-86 (citing Booth, 532 U.S. at 734). 24 The PLRA’s exhaustion requirement requires “proper exhaustion” of available 25 administrative remedies. Id. at 93. This requirement cannot be satisfied “by filing an 26 untimely or otherwise procedurally defective administrative grievance or appeal.” Id. at 27 84. “The text of 42 U.S.C. § 1997e(a) strongly suggests that the PLRA uses the term 28 ‘exhausted’ to mean what the term means in administrative law, where exhaustion means Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.05\Quiroz938_grant-mtd (exh).wpd 2 1 proper exhaustion.” Id. at 92. Therefore, the PLRA exhaustion requirement requires 2 proper exhaustion. Id. “Proper exhaustion demands compliance with an agency’s 3 deadlines and other critical procedural rules because no adjudicative system can function 4 effectively without imposing some orderly structure on the course of its proceedings.” Id. 5 at 90-91 (footnote omitted). Accordingly, the filing of an untimely grievance or appeal is 6 not proper exhaustion. See id. at 92. A prisoner must complete the administrative review 7 process in accordance with the applicable procedural rules, including deadlines, as a 8 precondition to bringing suit in federal court. See id. at 87; see also Johnson v. Meadows, 9 418 F.3d 1152, 1159 (11th Cir. 2005) (holding that, to exhaust remedies, a prisoner must 10 file appeals in the place, and at the time, the prison's administrative rules require); Ross v. 11 County of Bernalillo, 365 F.3d 1181, 1185-86 (10th Cir. 2005) (same). 12 The State of California provides its inmates and parolees the right to appeal 13 administratively “any departmental decision, action, condition, or policy which they can 14 demonstrate as having an adverse effect upon their welfare.” Cal. Code Regs. tit. 15, 15 § 3084.1(a). It also provides its inmates the right to file administrative appeals alleging 16 misconduct by correctional officers. See id. § 3084.1(e). In order to exhaust available 17 administrative remedies within this system, a prisoner must proceed through several 18 levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate 19 appeal form, (3) second level appeal to the institution head or designee, and (4) third level 20 appeal to the Director of the California Department of Corrections and Rehabilitation. Id. 21 § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the 22 administrative remedies exhaustion requirement under § 1997e(a). Id. at 1237-38. 23 Nonexhaustion under § 1997e(a) is an affirmative defense. Jones v. Bock, 24 127 S. Ct. 910, 922-23 (2007); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 25 Defendants have the burden of raising and proving the absence of exhaustion, and 26 inmates are not required to specifically plead or demonstrate exhaustion in their 27 complaints. Jones, 127 S. Ct. at 921-22. As there can be no absence of exhaustion unless 28 some relief remains available, a movant claiming lack of exhaustion must demonstrate Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.05\Quiroz938_grant-mtd (exh).wpd 3 1 that pertinent relief remained available, whether at unexhausted levels or through 2 awaiting the results of the relief already granted as a result of that process. Brown v. 3 Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005). 4 A nonexhaustion claim should be raised in an unenumerated Rule 12(b) motion 5 rather than in a motion for summary judgment. Wyatt, 315 F.3d at 1119. In deciding 6 such a motion – a motion to dismiss for failure to exhaust nonjudicial remedies – the 7 court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. 8 If the court concludes that the prisoner has not exhausted nonjudicial remedies, the proper 9 remedy is dismissal without prejudice. Id. at 1120. 10 2. 11 Defendants argue that Plaintiff failed to properly exhaust his administrative 12 remedies with respect to the medical claims. Defendants cite three inmate appeals 13 submitted by Plaintiff relating to treatment for Hepatitis C: nos. 04-03156, 06-00965, and 14 06-01645. Defendants allege that Plaintiff failed to properly exhaust these inmate appeals 15 before filing the instant complaint, and therefore this action should be dismissed for 16 failure to exhaust administrative remedies in accordance with 42 U.S.C. § 1997e(a). 17 Defendants have provided the declarations of William Barlow, the Litigation Coordinator 18 at PBSP, N. Grannis, the Chief of the Inmate Appeals Branch, and Chris Wilber, the 19 Inmate Appeals Coordinator at PBSP, sufficient to show that Plaintiff did not properly 20 exhaust any of the three inmate appeals before filing the instant action. 21 22 Legal Claims and Analysis a. Inmate Appeal No. 04-03156 On November 2, 2004, Plaintiff filed inmate appeal no. 04-03156, in which he 23 claims that after he reviewed his medical file on October 6, 2004, he “became aware that 24 the Prison Medical Department failed to inform [Plaintiff] of proper ‘positive’ test results 25 and failed to provide [Plaintiff] with adequate corrective medical treatment.” (Decl. 26 Wilber, Ex. B) (Docket No. 33). Plaintiff sought “to undergo any and all available 27 current Hepatitis C treatment available.” (Id.) Plaintiff’s appeal was partially granted at 28 the informal level on November 4, 2004, and Plaintiff was scheduled for an appointment Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.05\Quiroz938_grant-mtd (exh).wpd 4 1 with a PBSP doctor. Plaintiff was dissatisfied with the response, and filed the appeal with 2 the first formal level of review on November 9, 2004. The first level review stated that 3 Plaintiff was “being treated appropriately and adequately for [his] condition and [Plaintiff 4 was] being provided all available treatment per current Hepatitis policy.” (Id.) Plaintiff 5 appealed to the second level review, which partially granted the appeal in that Plaintiff’s 6 condition would continued to be monitored closely “through the chronic care program” 7 and Plaintiff would “be provided with adequate and appropriate treatment for [his] 8 condition per policy and procedure.” (Id.) Still dissatisfied, Plaintiff appealed to the 9 Director’s level of review. However, the appeal was screened out because Plaintiff failed 10 to submit the matter within fifteen working days. (Decl. Grannis, Ex. A) (Docket No. 11 32). Plaintiff claims in his opposition that he was prevented from filing a timely appeal 12 because the second level review was late in its response. (Pl.’s Opp. 20) (Docket No. 43). 13 However, the delayed response did not foreclose Plaintiff from filing a timely appeal to 14 the Director’s level. The obligation to exhaust persists as long as some remedy is 15 available; when that is no longer the case, the prisoner need not further pursue the 16 grievance. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Plaintiff was 17 informed by the albeit delayed second level response that he could appeal to the 18 Director’s level review. He did so, but not in a timely manner. (Decl. Grannis, Ex. A) 19 Accordingly, Plaintiff failed to properly exhaust his administrative remedies with respect 20 to this appeal. See Ngo, 126 S. Ct. at 2386. 21 22 b. Inmate Appeal No. 06-00965 On April 18, 2006, Plaintiff filed inmate appeal no. 06-00965 alleging that he was 23 experiencing medical problems related to his Hepatitis C and that he was not getting 24 proper medical attention. (Decl. Wilber, Ex. B.) Plaintiff requested a chronic care visit, a 25 liver biopsy, and to start “AVT” (drug therapy treatment). (Id.) Plaintiff’s grievance was 26 granted on April 24, 2006, when he was scheduled for a chronic care visit for a doctor to 27 address Plaintiff’s concerns. Dissatisfied with the response, Plaintiff appealed on May 3, 28 2006 to the first level review, which issued its decision on June 26, 2006. (Id.) The first Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.05\Quiroz938_grant-mtd (exh).wpd 5 1 level response stated that Plaintiff had received a liver biopsy on May 25, 2006, and the 2 results were still pending. (Id.) Thereafter, Plaintiff did not appeal the decision to the 3 second level review or the Directors level. Plaintiff offers no evidence in opposition. It is 4 clear that Plaintiff did not properly exhaust this appeal at the time he filed the amended 5 complaint. 6 c. Inmate Appeal No. 07-01656 7 Plaintiff filed inmate appeal no. 07-01656 on June 20, 2006, seeking another liver 8 biopsy and/or a recombinant immunoblot assay because he was skeptical that his newest 9 liver biopsy indicated that his condition had improved. (Decl. Wilber, Ex. C.) The 10 informal level denied the appeal, stating that the Hepatitis C virus did not damage 11 Plaintiff’s liver as it might in other people and that the report by the doctor who 12 performed the liver biopsy was thorough and accurate. (Id.) Plaintiff appealed to the first 13 formal level, seeking confirmation by a doctor of the likelihood that his liver had healed 14 itself. (Id.) The first level review interviewed Plaintiff and referred the matter to the 15 Hepatitis C Committee for review. The Committee agreed that Plaintiff’s liver biopsy 16 results reflected that Plaintiff’s condition had not worsened. (Id.) The first level review 17 partially granted the appeal, and Plaintiff was scheduled to meet with Nurse Practitioner 18 S. Risenhoover to go over the recommendations of the Hepatitis C Committee and the 19 blood work done on August 18, 2006. (Id.) Plaintiff submitted the grievance to the 20 second level review where it was determined that Plaintiff’s condition had not worsened 21 but had in fact improved. (Id.) The Director’s level denied Plaintiff’s request for another 22 liver biopsy and determined that Plaintiff’s medical concerns were being adequately 23 addressed by PBSP. (Id.) The appeal was exhausted on December 13, 2006. Plaintiff 24 filed his original complaint on July 19, 2005, and a second amended complaint on 25 November 13, 2006. An action must be dismissed unless the prisoner exhausted his 26 available administrative remedies before he or she filed suit, even if the prisoner fully 27 exhausts while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 28 2002); see Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.05\Quiroz938_grant-mtd (exh).wpd 6 1 administrative remedies are not exhausted before the prisoner sends his complaint to the 2 court it will be dismissed even if exhaustion is completed by the time the complaint is 3 actually filed). Because this appeal was exhausted after Plaintiff had already filed suit, it 4 is clear that he did not properly exhaust the appeal at the time he filed the action. Plaintiff 5 offers no evidence in opposition. Accordingly, this Court finds that Plaintiff did not 6 properly exhaust this appeal at the time he filed the amended complaint. McKinney v. 7 Carey, 311 F.3d at 1199. 8 Plaintiff failed to exhaust administrative remedies for his claim of deliberate 9 indifference to serious medical needs at the time he filed the second amended complaint. 10 Plaintiff did not properly exhaust inmate appeal no. 04-03156, which was screened out as 11 untimely at the Director’s Level, nor did he complete all levels of review for inmate 12 appeal no. 06-00965, not having sought second level or Director’s level review. Finally, 13 inmate appeal no. 0601645 was exhausted on December 13, 2006, which was after 14 Plaintiff filed the second amended complaint on November 13, 2006. Plaintiff did not 15 exhaust this third appeal at the time he filed the second amended complaint. Because 16 Plaintiff failed to exhaust his administrative remedies with respect to his medical claims, 17 Defendants’ motion to dismiss the medical claims is GRANTED. See 42 U.S.C. § 18 1997e(a). The medical claims against Defendants Winslow, Astoria, Milliman, and Horel 19 are DISMISSED without prejudice to Plaintiff refiling after all available administrative 20 remedies have been properly exhausted. Wyatt, 315 F.3d at 1120. 21 Because the Court finds Plaintiff failed to exhaust administrative remedies, it is 22 not necessary to reach the issues of qualified immunity or supervisor liability. Nor is it 23 necessary for the Court to reach Defendants’ untimeliness argument raised for the first 24 time in their Reply. (Docket No. 51.) 25 B. Procedural Due Process 26 Plaintiff alleges that Defendants Hernandez and Marquez violated procedural due 27 process in confiscating his personal property, an address book, as contraband because it 28 contained names of gang members. Plaintiff claims that he was not given a hearing or Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.05\Quiroz938_grant-mtd (exh).wpd 7 1 notified of any rules violation for possession of this property and that the property was 2 never returned to him. 3 Ordinarily, due process of law requires notice and an opportunity for some kind of 4 hearing prior to the deprivation of a significant property interest. See Memphis Light, 5 Gas & Water Div. v. Craft, 436 U.S. 1, 19 (1978). Neither the negligent nor intentional 6 deprivation of property states a due process claim under § 1983 if the deprivation was 7 random and unauthorized, however. See Parratt v. Taylor, 451 U.S. 527, 535-44 (1981) 8 (state employee negligently lost prisoner’s hobby kit), overruled in part on other grounds, 9 Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 U.S. 517, 533 10 (1984) (intentional destruction of inmate’s property). The availability of an adequate 11 state post-deprivation remedy, e.g., a state tort action, precludes relief because it provides 12 sufficient procedural due process. See Zinermon v. Burch, 494 U.S. 113, 128 (1990) 13 (where state cannot foresee, and therefore provide meaningful hearing prior to, 14 deprivation statutory provision for post-deprivation hearing or common law tort remedy 15 for erroneous deprivation satisfies due process); King v. Massarweh, 782 F.2d 825, 826 16 (9th Cir. 1986) (same). California law provides such an adequate post-deprivation 17 remedy. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t 18 Code §§ 810-895). 19 Defendants argue that the taking of the address book was random and 20 unauthorized, and therefore Plaintiff is precluded from federal relief because there is an 21 adequate state post-deprivation remedy by way of a state tort action. (Defs.’ Mot. 11.) 22 Plaintiff argues that the taking was pursuant to an established procedure and therefore is 23 not random or unauthorized. (Pl.’s Opp. 22-23.) In support of this argument, Plaintiff 24 alleges that since the prison officials did not issue a rules violation report (“RVR”) for 25 this act of misconduct, i.e., possession of contraband, he was not afforded a pre- 26 deprivation hearing. (Id.) This argument is without merit because prison officials are not 27 required to issue an RVR for every misconduct by a prisoner. (Defs.’ Reply 9.) Plaintiff 28 provides no other evidence to show that the deprivation was other than random and Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.05\Quiroz938_grant-mtd (exh).wpd 8 1 unauthorized. Accordingly, this claim must be dismissed because Plaintiff has an 2 adequate state post-deprivation remedy, e.g., a state tort action, which precludes relief 3 under § 1983. See Zinermon, 494 U.S. at 128. The claim against Defendants Hernandez 4 and Marquez is DISMISSED. 5 In his opposition, Plaintiff claims, for the first time, that the deprivation of his 6 address book violates his right to meaningful access to courts because without the address 7 book, Plaintiff cannot access legal assistance or other inmates to pursue non-frivolous 8 claims. (Pl.’s Opp. 28-30.) Defendants reply that Plaintiff has not sought leave of the 9 Court to amend his complaint to include this claim, and therefore, the Court need not 10 11 consider this new allegation. (Defs.’ Reply 9.) To establish a claim for any violation of the right of access to the courts, the 12 prisoner must prove that there was an inadequacy in the prison’s legal access program 13 that caused him an actual injury. See Lewis v. Casey, 518 U.S. 343, 350-55 (1996). To 14 prove an actual injury, the prisoner must show that the inadequacy in the prison’s 15 program hindered his efforts to pursue a non-frivolous claim concerning his conviction or 16 conditions of confinement. See id. at 354-55. Plaintiff’s claim does not include any 17 allegation regarding the inadequacy of PBSP’s legal access program nor does Plaintiff 18 state any actual injury. Accordingly, Plaintiff fails to state a claim upon which relief may 19 be granted. Plaintiff amended his complaint twice, and did not raise the claim of access 20 to courts in the original complaint or the first or second amended complaints. Federal 21 Rule of Civil Procedure 15(a) is to be applied liberally in favor of amendments and, in 22 general, leave shall be freely given when justice so requires. See Janicki Logging Co. v. 23 Mateer, 42 F.3d 561, 566 (9th Cir. 1994); cf. Weeks v. Bayer, 246 F.3d 1231, 1236-37 24 (9th Cir. 2001) (attempt to amend complaint requiring amendment of scheduling order 25 under Fed. R. Civ. P. 16 must be based upon good cause). Leave need not be granted, 26 however, where the amendment of the complaint would cause the opposing party undue 27 prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay. 28 See id.; see also Roberts v. Arizona Bd. of Regents, 661 F.2d 796, 798 (9th Cir. 1981). A Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.05\Quiroz938_grant-mtd (exh).wpd 9 1 district court’s discretion to deny leave to amend is particularly broad where the plaintiff 2 has previously filed an amended complaint. Wagh v. Metris Direct, Inc., 363 F.3d 821, 3 830 (9th Cir. 2003). The Court will not give Plaintiff leave to amend his complaint to 4 include this claim for lack of good cause to do so this late in the proceedings as Plaintiff 5 has twice amended his complaint and permitting him to amend a third time would also 6 cause undue delay. 7 C. State Claims 8 The Court originally exercised supplemental jurisdiction over Plaintiff’s state tort 9 claim of negligence, a due process claim and an equal protection claim pursuant to the 10 California Constitution pursuant to 28 U.S.C. § 1367(a), which provides that “‘district 11 courts shall have supplemental jurisdiction over all other claims that are so related to 12 claims in the action within such original jurisdiction that they form part of the same case 13 or controversy under Article III of the United States Constitution.’” The Court now 14 declines supplemental jurisdiction at this time because is has dismissed all claims over 15 which it has original jurisdiction as discussed above pursuant to 28 U.S.C. § 1367(c)(3).2 16 Accordingly, Plaintiff’s state claims are dismissed without prejudice. See Reynolds v. 17 County of San Diego, 84 F.3d 1162, 1171 (9th Cir. 1996). 18 /// 19 /// 20 21 22 23 24 25 26 27 28 2 Supplemental state law claims must be dismissed when the district court has no underlying original jurisdiction over the federal claims. See Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806-07 (9th Cir. 2001) (where district court determined it lacked admiralty jurisdiction, it had no power to retain supplemental state law claims). This must be distinguished from the district court’s discretionary authority to retain jurisdiction over state law claims where it has dismissed on the merits federal claims over which it did have original jurisdiction. Id. at 806. Dismissal of pendent state claims following dismissal of the related federal claims must be without prejudice. See Reynolds v. County of San Diego, 84 F.3d 1162, 1171 (9th Cir. 1996). But the district court need not provide any further explanation than that it is declining jurisdiction under § 1367(c)(3). San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir. 1998). Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.05\Quiroz938_grant-mtd (exh).wpd 10 CONCLUSION 1 2 For the foregoing reasons, the motion to dismiss by Defendants Warden Robert A. 3 Horel, Dr. Dwight Winslow, Dr. Astorga, Mr. Milliman, Lieutenant Robert Marquez, and 4 Officer Hernandez is GRANTED. (Docket No. 30.) The claims against them are 5 DISMISSED without prejudice. 6 IT IS SO ORDERED. 7 DATED: 9/9/08 JEREMY FOGEL United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Granting Motion to Dismiss P:\PRO-SE\SJ.JF\CR.05\Quiroz938_grant-mtd (exh).wpd 11