O'Roy v. Mares

Filing 34

ORDER GRANTING Defendant's Partial 27 Motion to Dismiss signed by District Judge Frank R. Zapata on 2/18/2010. (Sant Agata, S)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 P e n d in g before the Court is Defendant's partial motion to dismiss for failure to 15 16 B ackground 17 P la in tif f filed a pro se First Amended Complaint ("Complaint") pursuant to 42 U.S.C. 18 § 1983. See Doc. #14. Pursuant to a Screening Order, it was determined that Plaintiff stated 19 " c o g n iz a b le claims for relief under section 1983 against Defendant Correctional Officer 20 [ " C O " ] Mares for retaliation and use of excessive force, in violation of the Eighth 21 A m e n d m e n t." See Doc. #17 at 1. 22 Plaintiff alleges that on January 19, 2004, he was in the prison's dining hall in Facility 23 C eating breakfast. During breakfast, a fight broke out between other prisoners and he was 24 n o t involved in the fight. Correctional officers ordered the prisoners to get down on the 25 f lo o r. Plaintiff complied with this order and laid down in a prone position on the floor 26 27 28 The Court notes that Plaintiff received notice regarding his obligations to respond to the motion to dismiss as required under Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003).
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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

R ic k e y O'Roy, P la in tif f , vs. C o rre c tio n a l Officer Mares, D e f e n d a n t.

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N o . 1:05-CV-00339-FRZ ORDER

e x h a u s t. For the reasons stated below, the motion is granted.1

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a p p ro x im a te ly 20 feet away from where the actual fight was occurring. Nevertheless, P la in tif f alleges that CO Mares entered the dining hall and unjustifiably shot Plaintiff in the le f t thigh with his state issued "37 mm" gun which caused him great pain. In his Complaint, P la in tif f alleges both excessive force and also claims that Mares shot him in retaliation for P la in tif f previously offering testimony against Mares in an assault case brought by another p riso n e r. Discussion U n d e r the Prison Litigation Reform Act ("PLRA"), a prisoner must exhaust available a d m in is tra tiv e remedies before bringing a federal action concerning prison conditions. See 4 2 U.S.C. § 1997e(a); Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), re g a rd le s s of the type of relief offered through the administrative process, Booth v. Churner, 5 3 2 U.S. 731, 741 (2001). A prisoner must complete the administrative review process in a c c o rd a n c e with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). Exhaustion is an affirmative defense. Jones v. Bock, 549 U.S. 199, 212 (2007). Thus, th e defendant bears the burden of raising and proving the absence of exhaustion. Wyatt v. T e r h u n e , 315 F.3d 1108, 1119 (9th Cir. 2003). Because exhaustion is a matter of abatement in an unenumerated Rule 12(b) motion, a court may look beyond the pleadings to decide d is p u te d issues of fact. Id. at 1119-20. Further, a court has broad discretion as to the m e th o d to be used in resolving the factual dispute. Ritza v. Int'l Longshoremen's & W a r e h o u s e m e n 's Union, 837 F.2d 365, 369 (9th Cir. 1988) (quotation omitted). T h e CDC provides an administrative grievance procedure for prisoners. See Cal. C o d e . Regs., Title 15 §3084, et seq. "Any inmate or parolee under the department's

ju ris d ic tio n may appeal any departmental decision, action, condition, or policy which they c a n demonstrate as having an adverse effect upon their welfare . . . An appellant must submit th e appeal within 15 working days of the event or decision being appealed, or of receiving a n unacceptable lower level appeal decision." See id. at §3084.1(a) and §3084.6(c). The

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C D C provides four levels of appeal which includes the informal level, first formal level, s e c o n d formal level, and the third formal level which is referred to as the director's level; the d ire c to r's level appeal is final and exhausts all administrative remedies within the CDC. See i d . at §3084.5; Irvin v. Zamora, 161 F.Supp. 2d 1125, 1129 (S.D. Cal. 2001). An inmate m u s t proceed to the director's level to properly exhaust administrative remedies and therefore p rio r to seeking judicial relief. See Booth v. Churner, 532 U.S. 731, 739 (2001). Defendant's motion to dismiss concedes that Plaintiff properly exhausted his e x c e s s iv e force claim, but stresses that Plaintiff never raised the retaliation claim in the p riso n administrative grievance process and therefore the retaliation claim must be dismissed. The Court agrees. A review of the record shows that Plaintiff never raised the retaliation is su e in the prison's administrative grievance process. Rather, throughout the administrative p ro c e s s , Plaintiff claimed and submitted statements from other prisoners reflecting that CO M a re s unjustifiably and recklessly shot Plaintiff in the left thigh during the prison fight in the d in in g hall despite the fact that Plaintiff was 20 feet away from the altercation laying in a p r o n e position on the floor. There is no indication in the administrative record that CO M a re s shot him in retaliation for Plaintiff previously offering testimony against Mares in an a s s a u lt case brought by another prisoner. In light of the foregoing, the retaliation claim is d is m is s e d . C o n c lu s io n A c c o rd in g ly, IT IS HEREBY ORDERED as follows: (1 ) Defendant's partial motion to dismiss (Doc. #27) is granted; Plaintiff's retaliation claim is dismissed without prejudice. (2 ) As the excessive force claim still remains in this case, and the discovery and dispositive m o tio n deadlines have now expired, the parties are directed to the Court's previously issued S c h e d u lin g Order for directions pertaining to the remaining obligations of the parties in this c a s e . See Doc. #24 (February 2009 Scheduling Order and Attachment). If the parties believe th a t a settlement is possible and believe that they need extra time to discuss settlement, the

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p a r t i e s may file a joint request to stay the remaining deadlines pending settlement d is c u s s io n s . D A T E D this 18 th day of February, 2010.

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