Allen v. Rivera et al

Filing 59

FINDINGS and RECOMMENDATIONS Recommending Denying Defendants' 45 Motion to Dismiss signed by Magistrate Judge Gerald B. Cohn on 08/24/2012. Referred to Judge Ishii; Objections to F&R due by 9/20/2012.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CEDRIC R. ALLEN

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Plaintiff,

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CASE NO. 1:05-cv-00146-AWI-GBC (PC)

v.
J. RIVERA , et. al.,

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENYING DEFENDANTS’
MOTION TO DISMISS
Doc. 45

Defendants.

TWENTY-ONE DAY DEADLINE

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I.

Procedural History

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Plaintiff Cedric Allen (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. On November 21, 2011, Defendants filed a motion to dismiss

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for failure to exhaust administrative remedies. Doc. 45. On December 28, 2011, Plaintiff filed an

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opposition to Defendant’s motion to dismiss. Doc. 47. Defendants failed to file a timely reply.

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However, on July 2, 2012, over six months later, Defendants filed a motion for leave to file a reply

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to Plaintiff’s opposition. Doc. 51. On August 24, 2012, the Court denied Defendants’ motion to file

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an untimely reply. Doc. 58.

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II.

Motion to Dismiss Standard

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Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be

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

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

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as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is

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therefore mandatory, and no longer left to the discretion of the district court. Woodford v. Ngo, 548

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U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). The PLRA’s exhaustion

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requirement requires “proper exhaustion” of administrative remedies. Ngo, 548 U.S. at 93. This
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means “[p]risoners must now exhaust all ‘available’ remedies,” id. at 85, in “compliance with an

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agency’s deadlines and other critical procedural rules.” Id. at 90-91. The requirement cannot be

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satisfied “by filing an untimely or otherwise procedurally defective administrative grievance or

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appeal.” Id. Further, the remedies “available” need not meet federal standards, nor need they be

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“plain, speedy and effective.” Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth, 532 U.S. at 739-40

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& n.5.

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It is the prison’s requirements, and not the PLRA, that define the boundaries of proper

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exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007). The California Department of Corrections

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and Rehabilitation (“CDCR”) provides inmates the right to file administrative appeals alleging

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misconduct by correctional officers or “any departmental decision, action, condition, or policy which

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they can demonstrate as having an adverse effect upon their welfare.” See Cal. Code Regs. tit. 15,

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§§ 3084.1(a) & (e). In order to exhaust all available administrative remedies within this system, a

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prisoner must submit his complaint as an inmate appeal on a 602 form, within fifteen1 working days

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from the date the administrative decision or action being complained of, and proceed through several

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levels of appeal: (1) informal level grievance filed directly with any correctional staff member; (2)

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first formal level appeal filed with one of the institution’s appeal coordinators; (3) second formal

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level appeal filed with the institution head or designee; and (4) third formal level appeal filed with

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the CDCR director or designee. Id. at §§ 3084.5 & 3084.6(c); Brodheim v. Cry, 584 F.3d 1262,

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1264–65 (9th Cir. 2009); Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). See Ngo v.

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Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008) (Ngo II) (finding claims unexhausted where filed

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more than fifteen working days after deadline).

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Non-exhaustion under § 1997e(a) is an affirmative defense, which should be brought by the

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defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b).

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Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In raising an

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unenumerated 12(b) motion based on a plaintiff’s failure to exhaust, defendants have the burden of

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proving the absence of exhaustion. Wyatt, 315 F.3d at 1119. In deciding a motion to dismiss for

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As of July 2011, inmates have thirty calendar days to file appeals. § 3084.8(b).
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failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide

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

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

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B.

Analysis

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According to Defendants, on June 21, 2004, Plaintiff filed an administrative appeal alleging

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the facts central to the complaint in this action. Doc. 45 at 2; Doc. 45 at 7-11 (Exhibit A). On July

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1, 2004, Sgt. J. Martinez attempted to interview Plaintiff regarding his appeal, however, Plaintiff

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chose to withdraw the appeal. Doc. 45 at 13 (Exhibit A).

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In Plaintiff’s opposition, Plaintiff counters that on July 8, 2004, Plaintiff preserved his appeal

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because he had indicated that he no longer wished to withdraw his appeal and that he originally

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indicated that he wanted to withdraw his appeal because he was concerned for his safety when a

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correctional officer walked by with a riot gun during the above-mentioned interview. Doc. 47 at

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1; Doc. 47 at 6 (Exhibit A). According to Plaintiff, on December 23, 2004, the response to

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Plaintiff’s appeal acknowledged that Plaintiff requested to preserve the appeal. Doc. 47 at 1; Doc.

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47 at 10 (Exhibit A). Plaintiff asserts that on January 9, 2005, he filed his appeal to the third level

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and the appeal was stamped as received on January 19, 2005. Doc. 47 at 1; Doc. 47 at 6 (Exhibit A

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(stamp in lower right corner).

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Given Plaintiff’s evidence refute Defendants’ assertion that Plaintiff’s withdrawal of his

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appeal was final, Defendants have failed to meet their burden to demonstrate that Plaintiff failed to

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exhaust administrative remedies. See Wyatt, 315 F.3d at 1119 (defendants’ burden).

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III.

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Conclusion and Recommendation
Based on the foregoing, it is HEREBY RECOMMENDED that: Defendant's motion to

dismiss, filed November 21, 2011, be DENIED. (Doc. 45)

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

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty one (21)

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days after being served with these Findings and Recommendations, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
0jh02o

August 24, 2012
UNITED STATES MAGISTRATE JUDGE

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