-NLS Miller v. Rutledge et al, No. 3:2010cv01902 - Document 15 (S.D. Cal. 2011)
Court Description: ORDER granting 11 Motion to Dismiss Plaintiff's Complaint filed by the Defendants. The Clerk of Court is instructed to enter judgment accordingly and to close this case. Signed by Judge Michael M. Anello on 6/29/2011. (All non-registered users served via U.S. Mail Service)(leh)
Download PDF
<![CDATA[
-NLS Miller v. Rutledge et al Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LeWAYNE LEE MILLER, 12 CASE NO. 10cv1902-MMA (NLS) Plaintiff, vs. 13 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT 14 15 S. RUTLEDGE, et al., 17 [Doc. No. 11] Defendant. 16 On September 10, 2010, Plaintiff LeWayne Lee Miller (“Plaintiff”), a state prisoner 18 proceeding pro se, commenced this action seeking relief under 42 U.S.C. § 1983 for purported 19 violations of his rights under the First and Eighth Amendments to the United States Constitution. 20 Defendants Rutledge, Partida, Rush, and Lopez move to dismiss Plaintiff’s complaint pursuant to 21 Federal Rule of Civil Procedure 12(b) for failure to exhaust administrative remedies prior to filing 22 suit. Plaintiff has not filed an opposition to the motion.1 For the following reasons, the Court 23 GRANTS Defendants’ motion. 24 25 26 27 28 1 Both Defendants and the Court provided Plaintiff with notice of the motion to dismiss pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003), citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir. 1988) (per curiam). See Doc. Nos. 11-2 & 12. On April 11, 2011, Plaintiff filed a motion for an extension of time to file an opposition to the motion. See Doc. No. 13. The Court granted the motion, and extended Plaintiff’s deadline to file an opposition by thirty days. See Doc. No. 14. Plaintiff’s opposition was due on or before May 11, 2011. See id. To date, Plaintiff has not filed an opposition, nor has he filed a motion seeking a second extension of time in which to do so. -1- 10cv1902 Dockets.Justia.com 1 2 BACKGROUND Plaintiff is a prisoner currently incarcerated at Kern Valley State Prison, proceeding pro se 3 and in forma pauperis on his complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff was previously 4 housed at Calipatria State Prison in Calipatria, California. Defendants are a group of correctional 5 officers at Calipatria State Prison. The following description of events is taken from the pleadings 6 and is not to be construed as findings of fact by the Court.2 7 On or about December 7, 2009, Defendants Rutledge, Rush, and Partida approached 8 Plaintiff’s cell and ordered Plaintiff and his cell mate to exit the cell and submit to a cell search and 9 an unclothed body search for a suspected contraband cell phone. Defendants escorted Plaintiff and 10 his cell mate to separate showers, where Defendant Rutledge ordered Plaintiff to strip himself of his 11 clothing. Defendants Rutledge and Rush observed Plaintiff attempting to conceal a cell phone in his 12 left hand. Defendant Rutledge asked Plaintiff to identify the object in his left hand. Plaintiff 13 responded by spinning around and throwing the cell phone into the shower wall. The cell phone 14 smashed into pieces. Defendants Rutledge and Rush simultaneously sprayed Plaintiff’s face and 15 upper torso with two canisters of pepper spray, causing great pain to Plaintiff’s eyes and body. 16 Defendant Rutledge ordered Plaintiff to get down, and Plaintiff complied immediately. However, 17 Defendants Rutledge and Rush continued to spray Plaintiff with pepper spray until their canisters 18 were empty. 19 Defendants Partida and Lopez observed the pepper spray incident but did not intervene. 20 Plaintiff advised Defendants of his intent to file an administrative grievance based on the incident. 21 Defendants allowed Plaintiff to remain in the shower for over two hours with the water cut off, 22 preventing Plaintiff from being able to decontaminate himself, causing him great pain and suffering. 23 Based on these events, Plaintiff alleges Defendants Rutledge and Rush violated his Eighth 24 Amendment right to be free from cruel and unusual punishment by using excessive force. Plaintiff 25 alleges Defendants Partida and Lopez violated his Eighth Amendment rights by failing to protect 26 27 28 2 Because this case comes before the Court on a motion to dismiss, the Court must accept as true all material allegations in the complaint and must also construe the complaint, and all reasonable inferences drawn therefrom, in the light most favorable to Plaintiff. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). -2- 10cv1902 1 him from the acts of Defendants Rutledge and Rush. Plaintiff further alleges that all of the 2 defendants violated his First Amendment rights by retaliating against him after being advised of his 3 plan to file an administrative grievance. 4 Defendants move to dismiss Plaintiff’s complaint for failure to exhaust his administrative 5 remedies prior to filing this action. According to Defendants, Plaintiff faced disciplinary charges 6 arising out of the events described in his complaint and he was ultimately found guilty of a serious 7 rules violation. Defendants assert that while Plaintiff filed an appeal of the guilty finding, he filed 8 no other administrative grievances related to the December 7, 2009 incident. As such, Defendants 9 argue that Plaintiff did not exhaust his claims and his complaint must be dismissed. Plaintiff does 10 not oppose Defendants’ motion.3 DISCUSSION 11 12 1. Legal Standard 13 Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be 14 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 15 prisoner confined in any jail, prison, or other correctional facility until such administrative remedies 16 as are available are exhausted.” 42 U .S.C. § 1997e(a). Prisoners must complete the prison’s 17 administrative process, regardless of the relief sought by the prisoner and regardless of the relief 18 offered by the process, as long as the administrative process can provide some sort of relief on the 19 complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001). “Proper exhaustion[, which] 20 demands compliance with an agency’s deadlines and other critical procedural rules. . .” is required, 21 Woodford v. Ngo, 548 U.S. 81, 90 (2006), and may not be satisfied “by filing an untimely or 22 otherwise procedurally defective. . . appeal.” Id. at 83–84. 23 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 24 3 25 26 27 28 The Ninth Circuit has held a district court may properly grant an unopposed motion to dismiss pursuant to a local rule where the local rule permits, but does not require, the granting of a motion for failure to respond. See generally, Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Local Civil Rule 7.1(f)(3)(c) provides that if an opposing party fails to file papers in the manner required by the Local Rules, that failure may constitute a consent to the granting of that motion. As such, the Court has the option of granting Defendants’ motion on the basis of Plaintiff’s failure to respond. However, public policy favors disposition of cases on their merits. See, e.g., Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). Therefore, the Court considers the merits of Defendants’ motion and bases its ruling thereon. -3- 10cv1902 1 defense under which defendants have the burden of raising and proving the absence of exhaustion. 2 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 215–16 (2007); Wyatt v. Terhune, 315 F.3d 3 1108, 1119 (9th Cir.2003). “[A] defendant must demonstrate that pertinent relief remained 4 available, whether at unexhausted levels of the grievance process or through awaiting the results of 5 relief already granted as a result of that process.” Id. at 936–37. Therefore, if some remedy is 6 available, Plaintiff has not exhausted his remedies. 7 The failure to exhaust non-judicial administrative remedies that are not jurisdictional is 8 subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 9 F.3d at 1119, citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 10 (9th Cir.1998) (per curium). In deciding a motion to dismiss for failure to exhaust administrative 11 remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 12 F.3d at 1119–20. If the Court concludes that the prisoner has failed to exhaust administrative 13 remedies, the proper remedy is dismissal without prejudice. Id. 14 In order to exhaust administrative remedies, California state prisoners must comply with the 15 procedural requirements established by the California Department of Corrections and 16 Rehabilitation’s (“CDCR”) administrative grievance system for prisoner complaints. Cal. Code 17 Regs., tit. 15 § 3084.1 (2007). The process is initiated by submitting a CDC Form 602. Id. at § 18 3084.2(a). Appeals must be submitted within fifteen working days of the event being appealed, and 19 the process is initiated by submission of the appeal to the informal level, or in some circumstances, 20 the first formal level. Id. at §§ 3084.5, 3084.6©. Four levels of appeal are involved, including the 21 informal level, first formal level, second formal level, and third formal level, also known as the 22 “Director’s Level.” Id. at § 3084.5. In order to satisfy § 1997e(a), California state prisoners are 23 required to use this process to exhaust their claims prior to filing suit. Woodford, 548 U.S. at 85; 24 McKinney v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir.2002). 25 2. Analysis 26 The events alleged by Plaintiff against Defendants occurred on December 7, 2009. As 27 described above, the CDCR’s process for prisoner complaints is properly initiated by submitting a 28 CDC Form 602 to the appeals coordinator at the institution within fifteen working days of the event -4- 10cv1902 1 being appealed. Cal. Code Regs., tit. 15 §§ 3084.2(a), 3084©, 3084.6©. Therefore, to properly 2 initiate the appeals process for the events complained of herein, Plaintiff was required to submit an 3 appeal to the appeals coordinator within fifteen days of December 7, 2009. According to the appeals 4 coordinator at Calipatria State Prison, Plaintiff timely and properly submitted two administrative 5 appeals during his time at Calipatria from June 17, 2008 through July 14, 2010. Jimenez Decl’n. ¶¶ 6 6-7. 7 The first of the two appeals was received on March 2, 2010. Id. ¶ 7(a). In that appeal, 8 Plaintiff complained of being found guilty on February 18, 2010 for the specific act of battery on a 9 peace officer. Jimenez Decl’n., Ex. A. Subsequent to a hearing, Plaintiff was found guilty of battery 10 on Defendant Rutledge for throwing the cell phone during the December 7, 2009 incident, and 11 hitting Rutledge in the face. Plaintiff asserts in his grievance that he did not intentionally hit 12 Defendant Rutledge, and because it was an accident he should not have been found guilty of battery, 13 a serious rules violation for which he was assessed 150 days forfeiture of credits and 10 days loss of 14 yard privileges. Id. The second appeal was received on September 9, 2010. Jimenez Decl’n. ¶ 7(b). 15 In that appeal, Plaintiff complained of missing personal property after transfer from Calipatria to 16 California State Prison – Corcoran. Id. 17 According to the Calipatria appeals coordinator, although the first appeal tangentially related 18 to the events of December 7, 2009, neither appeal submitted by Plaintiff during his time at Calipatria 19 complained of excessive force or retaliation by Defendants on December 7, 2009. Id. ¶ 9. The 20 appeals coordinator at Corcoran screened out two appeals submitted by Plaintiff during his period of 21 incarceration at that institution. Campbell Decl’n. ¶ 7. Both appeals pertained to personal property 22 issues, and did not relate to the events of December 7, 2009. Id. 23 As the Ninth Circuit recently confirmed, “[t]o survive a motion to dismiss, the inmates’ 24 claims must be both exhausted and timely. We determine whether an inmate’s claim has been 25 exhausted by reference to the prison’s own grievance requirements, Griffin v. Arpaio, 557 F.3d 26 1117, 1120 (9th Cir.2009), which necessitate that the inmate “describe the problem and action 27 requested,” Cal. Code Regs. § 3084.2(a). While an inmate need not articulate a precise legal theory, 28 “a grievance [only] suffices if it alerts the prison to the nature of the wrong for which redress is -5- 10cv1902 1 sought.” Griffin, 557 F.3d at 1120.” McCollum v. California Dept. of Corrections and 2 Rehabilitation 2011 WL 2138221, 3 (9th Cir. Cal.). 3 Here, Defendants correctly assert that Plaintiff’s March 2, 2010 appeal did not provide notice 4 of any of his current allegations under the First and Eighth Amendments. Furthermore, Defendants 5 present unchallenged evidence that Plaintiff never filed a grievance directly based on the events of 6 December 7, 2009. The declarations of the appeals coordinators at Calipatria and Corcoran prisons 7 set forth that Plaintiff never properly filed any Director’s-level appeals related to any of the claims 8 he raises in this suit. That Plaintiff’s March 2, 2010 appeal was “related to” those events in so far as 9 they gave rise to a disciplinary hearing and serious rules violation, “is insufficient.” See McCollum, 10 2011 WL 2138221, 4 (citation omitted). Because Plaintiff did not properly exhaust his 11 administrative remedies, his claims against Defendants shall be dismissed without prejudice. 12 CONCLUSION 13 Based on the foregoing, the Court GRANTS Defendants’ motion and DISMISSES 14 Plaintiff’s complaint without prejudice. The Clerk of Court is instructed to enter judgment 15 accordingly and close this case. 16 17 IT IS SO ORDERED. DATED: June 29, 2011 18 19 Hon. Michael M. Anello United States District Judge 20 21 22 23 24 25 26 27 28 -6- 10cv1902
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
