Contreraz v. Adams, et al

Filing 80

FINDINGS and RECOMMENDATIONS, Recommending That Defendants' Motion to Dismiss for Failure to Exhaust be Granted 44 , Objections, if Any, Due In Thirty (30) Days, signed by Magistrate Judge Gary S. Austin on 3/21/12. Referred to Judge O'Neill. (Gonzalez, R)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

QUETZAL CONTRERAZ,

10

Plaintiff,

11
12

1:04-cv-06039-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANTS’
MOTION TO DISMISS FOR FAILURE TO
EXHAUST BE GRANTED
(Doc. 44.)

v.
D. ADAMS, et al.,

13

Defendants.

OBJECTIONS, IF ANY, DUE IN THIRTY (30)
DAYS

14
/
15
16

I.

BACKGROUND

17

Quetzal Contreraz (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

18

in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing

19

this action on July 15, 2004, at the United States District Court for the Northern District of

20

California. (Doc. 1.) On July 30, 2004, the case was transferred to the Eastern District of California.

21

Id. This action now proceeds on the Second Amended Complaint filed on January 22, 2009, against

22

defendants Warden Derral Adams, Chaplain Michael Raymond, and Chaplain Darrow Hetebrink

23

(“Defendants”), on Plaintiff's claims for violation of his right to Free Exercise under the First

24

Amendment, and violation of his right to Equal Protection under the Fourteenth Amendment, for

25

denying Plaintiff a religious diet, the right to wear facial hair, and accommodations to perform a full

26

moon ritual, consistent with religious tenets of the Olin Pyramid Religion. (Doc. 32.)

27

On May 17, 2010, defendant Adams filed a motion to dismiss Plaintiff’s claims concerning

28

his right to a religious diet and his right to use the prison chapel to perform a full moon ritual, based
1

1

on Plaintiff’s failure to exhaust administrative remedies before filing suit. (Doc. 44.) On November

2

2, 2010, defendant Hetebrink joined the motion to dismiss. (Doc. 54.) On July 25, 2011, Plaintiff

3

filed an opposition to the motion.1 (Doc. 70.) On October 13, 2011, defendants Adams and

4

Hetebrink filed a reply to Plaintiff's opposition. (Doc. 76.) On October 19, 2011, defendant

5

Raymond joined the motion to dismiss and the reply. (Doc. 78.) Defendants’ motion to dismiss is

6

now before the Court.

7

II.

STATUTORY EXHAUSTION REQUIREMENT

8

Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that “[n]o action shall

9

be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by

10

a prisoner confined in any jail, prison, or other correctional facility until such administrative

11

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust

12

the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127

13

S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).

14

Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief

15

offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the

16

exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S.

17

516, 532, 122 S.Ct. 983 (2002).

18

Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative

19

defense under which Defendant has the burden of raising and proving the absence of exhaustion.

20

Jones, 549 U.S. at 216; Wyatt, 315 F.3d at 1119. The failure to exhaust nonjudicial administrative

21

remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a

22

summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int’l Longshoremen’s &

23

Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). In deciding a motion to

24

dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and

25

decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the Court concludes that the prisoner

26

has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.

27
1

28

Plaintiff was provided with notice of the requirements for opposing an unenumerated Rule 12(b) motion on
January 4, 2010. W yatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003); Rand v. Rowland, 154 F.3d 952 (9th
Cir. 1998). (Doc. 38.)

2

1

III.

SUMMARY OF PLAINTIFF’S ALLEGATIONS

2

At the time of the events at issue, Plaintiff was a state prisoner at the California Substance

3

Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California, and Defendants were

4

employed at SATF. Plaintiff alleges as follows in the Second Amended Complaint. Plaintiff is a

5

Native American who observes the Olin Pyramid Religion. Plaintiff arrived at SATF in May 2001

6

and thereafter had numerous contacts with defendant Raymond, the Native Spiritual Advisor or

7

Chaplain at the prison, regarding Plaintiff’s religious need for facial hair. Plaintiff sought and was

8

denied an exemption from the prison rule that prohibited any kind of facial hair save a brief

9

mustache. Defendant Adams supported defendant Raymond’s finding against the exemption, which

10

was based on Plaintiff’s inability to provide the required “attestation letter” verifying Plaintiff’s

11

religious need for facial hair.

12

On or about March 23, 2003, Plaintiff wrote to defendant Hetebrink, the Protestant Chaplain

13

at SATF, requesting a religious diet consistent with the tenets of the Olin Pyramid Religion. After

14

consideration, Plaintiff’s request was denied, and Plaintiff protested by observing a hunger strike.

15

Plaintiff wrote to defendant Adams about defendant Hetebrink’s refusal to accommodate Plaintiff’s

16

request for a religious diet, but defendant Adams never responded. Plaintiff offered materials to

17

defendant Hetebrink in an attempt to explain his religion, but Hetebrink refused to look at the

18

materials, stating, “Indians don’t have a Bible.”

19

On or about August 10, 2004, Plaintiff wrote to defendant Hetebrink, asking for daytime

20

access to the chapel once a month to perform a full moon ritual in relation to Plaintiff’s religious

21

beliefs. Defendant Hetebrink denied the request, stating there was no staff supervision for Plaintiff

22

to perform a ritual once a month in the Chapel. Plaintiff contends there was adequate staff available

23

to accommodate Plaintiff’s need.

24

Plaintiff was punished for having facial hair, lost privileges, was confined to his cell, lost

25

good behavior credits, and was issued a Rules Violation Report which led to the rejection

26

ofPlaintiff’s right to a parole date by the Board of Parole Hearings Committee. Plaintiff was forced

27

to shave off his facial hair against his will. Plaintiff requests monetary damages.

28

///
3

1

IV.

MOTION TO DISMISS FOR FAILURE TO EXHAUST

2

The Court takes judicial notice of the fact that the California Department of Corrections and

3

Rehabilitation (“CDCR”) has an administrative grievance system for prisoner complaints. Cal.Code

4

Regs., tit. 15 § 3084.1 (2007). The process is initiated by submitting a CDC Form 602. Id. at §

5

3084.2(a). Appeals must be submitted within fifteen working days of the event being appealed, and

6

the process is initiated by submission of the appeal to the informal level, or in some circumstances,

7

the first formal level. Id. at §§ 3084.5, 3084.6(c). Four levels of appeal are involved, including the

8

informal level, first formal level, second formal level, and third formal level, also known as the

9

“Director’s Level.” Id. at § 3084.5. In order to satisfy § 1997e(a), California state prisoners are

10

required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S.

11

81, 85 (2006); McKinney, 311 F.3d. at 1199-1201.

12

A.

Defendants’ Motion

13

Defendants argue that Plaintiff’s claims for relief based on the denial of his right to a

14

religious diet and right to use the chapel at the prison to perform a full moon ritual, pursuant to his

15

religious beliefs, should be dismissed because Plaintiff failed to exhaust his administrative remedies

16

for those claims before filing suit on July 15, 2004. Defendants submit evidence that there is no

17

record that Plaintiff exhausted his administrative remedies regarding Defendants’ denial of Plaintiff’s

18

request for a religious diet or his request for chapel access to perform full moon rituals. Between

19

July 2003 and July 2004, records show that Plaintiff filed only one appeal at SATF, Log Number

20

SATF-02-6170, which was accepted for third level review. (Declaration of D. Foston, Doc. 44-1

21

at ¶4.) Appeal SATF-02-6170 concerned Plaintiff’s request for a religious exemption to the

22

grooming standards to allow him to wear a beard or goatee. (Id. at ¶5 & Exh. 1.) Records at SATF

23

show that Plaintiff did not file any appeals at the first or second level of review concerning his

24

allegations that (1) defendants Hetebrink and Adams refused to provide inmate Contreraz (C-45857)

25

with a religious diet consistent with tenets of the Olin Pyramid religion, or (2) defendant Hetebrink

26

denied Contreraz daytime access to the chapel once a month to perform a full moon ritual in relation

27

to his religious beliefs, practices, and requirements. (Declaration of R. Gomez, Doc. 44-2 at ¶5.)

28

///
4

B.

1

Plaintiff’s Opposition

2

In opposition, Plaintiff asserts that between 2001 and 2004, he filed formal and informal

3

administrative complaints against the conditions complained of, including six appeals, which is

4

beyond what was required. Plaintiff has submitted copies of documents attached as Exhibits A

5

through H in support of his opposition. Plaintiff also argues that if he failed to exhaust his remedies

6

within the time constraints, it was because he was restricted from filing excess appeals by the prison

7

and faced disciplinary charges if he filed too many appeals.
C.

8

Defendants’ Reply

9

Defendants reply that Plaintiff’s opposition, along with his attached exhibits, confirm that

10

he did not exhaust his administrative remedies for denials of his request for a religious diet and

11

request for access to the chapel, before filing this action.
D.

12

Discussion

13

Defendants have met their burden to demonstrate that Plaintiff failed to exhaust his

14

administrative remedies for his claims concerning a religious diet and access to the chapel, prior to

15

filing suit, in compliance with § 1997e(a). Defendants have shown an absence in the official records

16

of any evidence that Plaintiff exhausted his remedies by an inmate appeal pursuant to Title 15 of the

17

California Code of Regulations § 3084.1, et seq., concerning Plaintiff’s allegations that he was

18

denied a religious diet and access to the chapel by Defendants. The Court now examines Plaintiff’s

19

evidence.
1.

20

Plaintiff’s Evidence of Appeals

21

(1) Appeal Log Number SATF-01-02708 was submitted on April 24, 2001 and concerned

22

Plaintiff’s request for an exemption from the prison’s inmate grooming standards. (Opp’n, Doc. 70,

23

Exh. A at 7.) While Plaintiff mentioned regulations about allowing religious expression and

24

religious dietary needs, his only request in this appeal was for an exemption from the grooming

25

standards for facial hair. (Id. at 9, 13, 22-23.) On November 5, 2001, the appeal was denied at the

26

Second Level of review. (Id. at 27.) On January 7, 2008, the appeal was rejected at the Third Level

27

of review as not being submitted within the requisite 15 working days. (Id. at 31.)

28

///
5

1

This appeal does not concern Plaintiff’s request for access to the chapel or his request for a

2

religious diet, which are the subject of Defendants’ motion to dismiss. Moreover, the appeal was

3

not completed to the Director’s Level of review. Therefore, Plaintiff did not exhaust his remedies

4

via Appeal SATF-01-02708 for purposes of Defendants’ motion to dismiss.

5

(2) Appeal with No Assigned Number. Plaintiff submitted an appeal on September 9,

6

2001 which was not assigned a log number. This appeal concerned Plaintiff’s request to the Property

7

Officer for his religious text from his stored personal property. (Id., Exh. B at 33-36.)

8

This appeal does not concern Plaintiff’s request for access to the chapel or his request for a

9

religious diet, which are the subject of Defendants’ motion to dismiss. Moreover, there is no

10

evidence the appeal was completed to the Director’s Level of review. Therefore, Plaintiff did not

11

exhaust his remedies via this appeal for purposes of Defendants’ motion to dismiss.
(3)

12

Appeal Log Number SATF-02-06170 was submitted on November 26, 2002 and

13

concerned Plaintiff’s request not to be sanctioned for wearing facial hair as required by his religion.

14

(Id., Exh. C at 38.) On January 23, 2003, the appeal was denied at the Second Level of review. (Id.

15

at 40-43.) On April 29, 2003, the appeal was denied at the Director’s Level of review. (Id. at 44.)

16

This appeal does not concern Plaintiff’s request for access to the chapel or his request for a

17

religious diet, which are the subject of Defendants’ motion to dismiss. Therefore, Plaintiff did not

18

exhaust his remedies via Appeal SATF-02-06170 for purposes of Defendants’ motion to dismiss.
(4)

19

Appeal Log Number SATF-03-4834 was submitted on September 10, 2003 and

20

concerned Plaintiff’s request to be issued his package without having to shave off his religious facial

21

hair, and his request that his property not be disposed of pending final resolution of this appeal. (Id.,

22

Exh. E at 50.) On February 23, 2004, this appeal was denied at Second Level of review. (Id. at 52-

23

55.)
This appeal does not concern Plaintiff’s request for access to the chapel or his request for a

24
25

religious diet, which are the subject of Defendants’ motion to dismiss. Moreover, there is no

26

evidence the appeal was completed to the Director’s Level of review. Therefore, Plaintiff did not

27

exhaust his remedies via this appeal for purposes of Defendants’ motion to dismiss.

28

///
6

1

(5) Appeal with No Assigned Number. Plaintiff submitted an appeal on September 3,

2

2004 which was not assigned a log number. This appeal concerned Plaintiff’s request to be allowed

3

to perform a full moon ritual once a month in the chapel. (Id., Exh. D at 46.)

4

Because this appeal was initially submitted for review on September 3, 2004, which is after

5

Plaintiff’s lawsuit was filed on July 15, 2004, Plaintiff could not have exhausted his remedies via

6

this appeal before filing suit, in compliance with § 1997e(a). Therefore, Plaintiff did not exhaust

7

his remedies in this action via this appeal for purposes of Defendants’ motion to dismiss.

8
9
10

(6) Appeal Log Number SATF-07-0504 was submitted on January 22, 2007 and concerned
Plaintiff’s complaint that there is no American Indian chaplain at the prison. (Id., Exh. H at 84.)
On April 3, 2007, the appeal was partially granted at Second Level of review. (Id. at 88.)

11

This appeal does not concern Plaintiff’s request for access to the chapel or his request for a

12

religious diet, which are the subject of Defendants’ motion to dismiss. Moreover, there is no

13

evidence the appeal was completed to the Director’s Level of review. Therefore, Plaintiff did not

14

exhaust his remedies via this appeal for purposes of Defendants’ motion to dismiss.
2.

15

Plaintiff’s Evidence of Other Administrative Complaints

16

Plaintiff submits evidence of four Inmate Requests for Interview, and two letters to the

17

Warden, concerning his need for a liquid diet for religious reasons. He also sent letters to the

18

Director of Corrections and Secretary Roderick Hickman, concerning inmate grooming standards

19

restricting the wearing of facial hair.

20

Plaintiff's Inmate Requests for Interview and letters to the Warden, the Director of

21

Corrections, and Secretary Roderick Hickman neither excused Plaintiff's failure to properly submit

22

appeals, nor relieved him from proceeding through all the steps in the grievance process. See

23

Woodford, 548 U.S. at 91, 93 (exhaustion under the PLRA requires “compliance with an agency's

24

deadlines and other critical procedural rules”); Wilson v. Wann, No. CIV S-06-1629 GEB KJM P,

25

2008 WL 4166886, at *2 (E.D.Cal. Sept.8, 2008) (plaintiff's letters to the Office of the Inspector

26

General, Office of Internal Affairs and the Warden were insufficient to show exhaustion). Therefore,

27

Plaintiff did not exhaust his administrative remedies via his Inmate Requests for Interview and letters

28

to officials.
7

3.

1

Plaintiff’s Argument that Remedies were Unavailable

2

Prisoners are required to exhaust the available administrative remedies prior to filing suit.

3

Jones, 549 U.S. at 211, 127 S.Ct. at 918-19 (emphasis added). Plaintiff argues that if he failed to

4

exhaust his remedies within the requisite time constraints, it was because he was restricted from

5

filing excess appeals by the prison and faced disciplinary charges if he filed too many appeals.

6

Plaintiff admits that in the past, he filed excess appeals, which resulted in a restriction from

7

submitting more than one non-emergency appeal within a seven-calendar day period. (Opp’n, Doc.

8

70, Exh. D at 48.)

9

Plaintiff has not supported this argument with any evidence that the restriction prevented him

10

from exhausting remedies in this case for any of the claims at issue in the motion to dismiss.

11

Therefore, this argument fails.

12

4.

Evidence Beyond the Pleadings

13

In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may

14

look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. Plaintiff

15

signed the original Complaint, First Amended Complaint, and Second Amended Complaint under

16

penalty of perjury. Therefore, Plaintiff’s opposition to the motion to dismiss is based in part on the

17

evidence in his verified complaints. The court has examined Plaintiff’s complaints and while

18

Plaintiff asserts that he filed several appeals, the court finds no further evidence of exhaustion of the

19

available remedies with regard to Plaintiff’s claims at issue in Defendants’ motion to dismiss.

20

V.

CONCLUSION AND RECOMMENDATION

21

Defendants have met their burden of demonstrating that Plaintiff failed to exhaust his

22

administrative remedies with regard to his claims that Defendants violated his First Amendment

23

rights when they denied Plaintiff’s request for access to the chapel and Plaintiff’s request for a

24

religious diet, prior to filing suit, in compliance with § 1997e(a). Defendants have shown an absence

25

in the official records of any evidence that Plaintiff exhausted his remedies for the aforementioned

26

claims by an inmate appeal pursuant to Title 15 of the California Code of Regulations § 3084.1, et

27

seq., concerning certain allegations in the complaint against Defendant in this action. Plaintiff has

28

///
8

1

not submitted evidence of any appeals that satisfy the exhaustion requirement, nor has Plaintiff

2

submitted evidence that he exhausted all of the remedies available to him.

3

Therefore, based on the foregoing, the Court HEREBY RECOMMENDS that:

4

1.

Defendants’ motion to dismiss, filed on May 23, 2011, be GRANTED;

5

2.

Plaintiff’s claims that Defendants violated his First Amendment rights when they

6

denied Plaintiff’s request for a religious diet and denied Plaintiff’s request for chapel

7

access to perform full moon rituals be DISMISSED from this action, based on

8

Plaintiff’s failure to exhaust administrative remedies before filing suit;

9

3.

to exhaust administrative remedies for the claims against him before filing suit; and

10
11

Defendant Hetebrink be DISMISSED from this action, based on Plaintiff’s failure

4.

This action proceed only against defendants Raymond and Adams, on Plaintiff’s

12

claims for violation of the Free Exercise Clause of the First Amendment based on the

13

denial of Plaintiff’s request for an exemption from the prison’s inmate grooming

14

standards for religious reasons.

15

These Findings and Recommendations will be submitted to the United States District Court

16

Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within thirty

17

(30) days after being served with a copy of these Findings and Recommendations, any party may file

18

written objections with the Court and serve a copy on all parties. Such a document should be

19

captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Replies to the

20

objections shall be served and filed within ten (10) days after service of the objections. The Court

21

will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). The parties are

22

advised that failure to file objections within the specified time may waive the right to appeal the

23

order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

24
25
26

IT IS SO ORDERED.
Dated:
6i0kij

March 21, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

27
28
9