Strong v. Folsom State Prison, et al
Filing
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ORDER granting 56 Motion to Dismiss signed by Magistrate Judge Michael J. Seng on 5/8/2011. CASE CLOSED. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DERRICK STRONG,
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CASE NO.
Plaintiff,
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1:04-cv-5331-MJS (PC)
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS FOR FAILURE TO
EXHAUST ADMINISTRATIVE REMEDIES
v.
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FOLSOM STATE PRISON, et al.,
(ECF No. 56)
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Defendants.
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PLAINTIFF’S CLAIMS ARE DISMISSED
WITHOUT PREJUDICE
/
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CLERK SHALL CLOSE THE CASE
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I.
PROCEDURAL HISTORY
Plaintiff Derrick Strong (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Both parties have
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consented to Magistrate Judge jurisdiction in this case. (ECF Nos. 65 & 66.) Pending
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before this Court is a Motion to Dismiss filed by Defendant H. Villapueda. (ECF No. 56.)
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Plaintiff filed an Opposition on February 28, 2011, and Defendant replied on March 11,
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2011. (ECF Nos. 59 & 62.).
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This action proceeds on Plaintiff’s Second Amended Complaint filed May 3, 2006.
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(ECF No. 19.) On November 21, 2006, this Court screened Plaintiff’s Complaint finding
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that it stated a cognizable claim for relief against Defendant Villapueda for excessive use
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of force.
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II.
THE PARTIES’ ARGUMENTS
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In the instant Motion, Defendant argues that Plaintiff failed to exhaust his
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administrative remedies before filing this action. Defendant states that in July 2003 Plaintiff
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filed a grievance related to what he complains of here. (ECF No. 56-4.) This grievance
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was denied at the Second Level of Review on September 4, 2003 and returned to Plaintiff
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on September 24, 2003. (Id. at ex. A.) According to prison grievance procedures, Plaintiff
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had fifteen days to submit the grievance for review at the Director’s Level. (ECF No. 56-3.)
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Plaintiff submitted his appeal of the denial on October 29, 2003, over a month after
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receiving notice of the denial at the Second Level of Review. (Id. at ex. A.) Plaintiff’s
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appeal at the Director’s Level was screened out because it was not submitted in a timely
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manner. (Id.) Defendant argues that because Plaintiff did not receive a decision on his
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appeal at the Director’s Level, he did not exhaust the administrative remedies available to
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him.
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In his Opposition, Plaintiff states that he “received the 602 appeal process back
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late.” (ECF No. 59, p. 1.) It is unclear what exactly it is Plaintiff says he received late.
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However, it is apparent from attachments to Defendant’s Motion that there was a
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significant delay between the time that the denial was issued and when Plaintiff received
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a copy of it.
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In his Reply, Defendant reiterates his original argument.
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III.
LEGAL STANDARD
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“The Prison Litigation Reform Act [(“PLRA”)] requires that a prisoner exhaust
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available administrative remedies before bringing a federal action concerning prison
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conditions.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. §
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1997e(a)); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (quoting Porter v. Nussle,
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534 U.S. 516, 525 n.4 (2002)) (The PLRA “creates ‘a general rule of exhaustion’ for
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prisoner civil rights cases.”). “‘[T]he PLRA’s exhaustion requirement applies to all inmate
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suits about prison life, whether they involve general circumstances or particular episodes,
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and whether they allege excessive force or some other wrong.’” Bennett v. King, 293 F.3d
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1096, 1098 (9th Cir. 2002) (quoting Porter, 534 U.S. at 532); accord Roles v. Maddox, 439
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F.3d 1016, 1018 (9th Cir.), cert. denied, 549 U.S. 905 (2006). The PLRA’s “exhaustion
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requirement is mandatory.” McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per
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curiam); accord Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that
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exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought
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in court.”); see also Panaro v. City of North Las Vegas, 432 F.3d 949, 954 (9th Cir. 2005)
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(The PLRA “represents a Congressional judgment that the federal courts may not consider
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a prisoner’s civil rights claim when a remedy was not sought first in an available
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administrative grievance procedure.”). Even if the prisoner seeks monetary or other relief
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that is unavailable through the grievance system in question, the prisoner must still first
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exhaust all available administrative remedies. See Booth v. Churner, 532 U.S. 731, 741
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(2001) (“[W]e think that Congress has mandated exhaustion clearly enough, regardless of
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the relief offered through administrative procedures.”).
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While the PLRA requires “proper” exhaustion of available administrative remedies,
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Woodford v. Ngo, 548 U.S. 81, 93 (2006), it does not define the boundaries of proper
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exhaustion.
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compliance with an agency’s deadlines and other critical procedural rules[.]” Woodford,
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See Jones, 549 U.S. at 218.
Rather, “[p]roper exhaustion demands
548 U.S. at 90. “The level of detail necessary in a grievance to comply with the grievance
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procedures will vary from system to system and claim to claim, but it is the prison’s
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requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones,
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549 U.S. at 218; see, e.g., Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009, as
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amended June 5, 2009) (per curiam) (“The California prison system’s requirements define
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the boundaries of proper exhaustion.”) (internal quotation marks and citation omitted).
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Absent a prison grievance procedure mandating the naming of each individual involved,
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a prisoner need not identify all of the defendants later named in a lawsuit during the
administrative grievance process. Jones, 549 U.S. at 218.
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The PLRA’s exhaustion requirement is not jurisdictional; rather, it creates an
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affirmative defense that a defendant may raise in an unenumerated Rule 12(b) motion.
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See Jones, 549 U.S. at 213-14; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert.
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denied, 540 U.S. 810 (2003). The defendant bears the burden of raising and proving the
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absence of exhaustion. Wyatt, 315 F.3d at 1119. Specifically, the defendant must show
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that some administrative relief remains available to the plaintiff “whether at unexhausted
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levels of the grievance process or through awaiting the results of the relief already granted
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as a result of that process.” Brown, 422 F.3d at 936-37. In deciding a motion to dismiss
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for failure to exhaust, a court may “look beyond the pleadings and decide disputed issues
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of fact.” Wyatt, 315 F.3d at 1119-20. When a prisoner has not exhausted administrative
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remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Id.
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at 1120. However, dismissal of the entire complaint is not required when a prisoner has
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exhausted some, but not all, of the claims included in the complaint. See Jones, 549 U.S.
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at 223-24.
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California provides its inmates and parolees the right to appeal administratively the
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alleged misconduct of correctional officers and “any departmental decision, action,
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condition or policy perceived by those individuals as adversely affecting their welfare.” Cal.
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Code Regs. tit. 15, § 3084.1(a), (e). In order to exhaust administrative remedies within this
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system, a prisoner normally must proceed through four levels: (1) initiation of informal
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resolution through submission of a CDC form describing the problem and the action
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requested; (2) first level formal written appeal to the prison’s appeals coordinator; (3)
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second level formal appeal to the institution’s warden or designee; and (4) third level formal
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appeal to the CDCR Director (“Director’s Level”). Id. § 3084.5; see Woodford, 548 U.S.
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at 90-91 (California prisoners are required to use the process established by Cal. Code
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Regs., tit. 15 §§ 3084.1, 3084.2-3084.6 in order to satisfy 42 U.S.C. § 1997e(a)); Porter,
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534 U.S. at 532 (the exhaustion requirement is mandatory and applies to all prisoner suits
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relating to prison life that do not implicate the duration of the prisoner’s sentence).
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IV.
ANALYSIS
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In his Complaint, Plaintiff states that there is an administrative remedy available at
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his institution and that he did submit a request for administrative relief regarding this
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incident, but that the process was not completed. Plaintiff states the reason for the in-
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completion was due to a “lack of cooperation.” In his Opposition, Plaintiff states that he
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“received the 602 appeal process late.” It is not clear what Plaintiff means by this
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statement. The date of the letter denying the second level of review is September 4, 2003.
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The date stamped on the grievance form states that it was returned to Plaintiff on
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September 24, 2003. Plaintiff did not file an appeal of this denial until the end of October.
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If Plaintiff is claiming he did not receive the September 4 letter until September 24, he
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nevertheless still failed to file an appeal within fifteen days of receipt and thereby missed
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the filing deadline. Plaintiff does not dispute his alleged failure to appeal to the Director’s
Level.
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Because it is undisputed that Plaintiff did not properly exhaust his administrative
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remedies prior to bringing this action, the Court does not have jurisdiction over his claims.
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Defendant’s Motion to Dismiss for failure to exhaust administrative remedies is granted and
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the case is dismissed without prejudice.
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Accordingly, IT IS HEREBY ORDERED that:
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Defendants’ Motion to Dismiss is GRANTED;
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Plaintiff’s action is DISMISSED WITHOUT PREJUDICE; and
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3.
The Clerk shall close the case.
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IT IS SO ORDERED.
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Dated:
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ci4d6
May 8, 2011
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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