Bobby James Williams v. Hickman, Et Al.

Filing 43

ORDER DENYING Defendant's 29 Motion to Dismiss signed by District Judge G. Murray Snow on 7/30/2009. (Sant Agata, S)

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WO
N O T FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

B O B B Y JAMES WILLIAMS, Plaintiff, vs. R O D E R IC K HICKMAN, et al.,

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N o . CV-1:05-01649-GMS ORDER

P e n d in g before the Court is Defendants' Motion to Dismiss. (Dkt. # 29.) For the re a so n s set forth below, the Court denies the motion. BACKGROUND In January of 2005, Plaintiff Bobby James Williams was incarcerated at the Salinas V a lle y State Prison in Soledad, California. Plaintiff alleges that, on January 11, 2005, D e f en d a n ts Bracken, Caruso, and Contras placed him in a "stand up holding cage" where he w a s told he would remain all night. (Dkt. # 18 at 8.) Plaintiff claims to have explained to D e f e n d a n t Bracken that, due to a medical condition, Plaintiff was unable to stand up or hold h is bodily fluids for an extended time. (Id. at 9.) Plaintiff alleges that he was then left in the h o ld in g cage for several hours, where he was forced to urinate and defecate in the holding c a g e and eat "chow covered in . . . human toxic waste." (Id.) Plaintiff asserts that D e f en d a n ts Contras and Caruso then placed him in another holding cage where he was forced

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to stay for seven days. (Id.) According to Plaintiff, he had no running water, was forced to s le e p on the cold floor, and was subjected to other "inhuman[e] conditions." (Id.) Plaintiff c la im s that, due to his medical condition, he was supposed to maintain a water intake of three to four liters per day, which he alleges he was not permitted to do. (Id.) Plaintiff states that h is "insides hurt due to this cruel mistreatment." (Id.) O n January 20, 2005, Plaintiff filed an official staff complaint, No. 05-00320, with p ris o n officials regarding the aforementioned incident. (Id. at 17.) The California

D e p a r tm e n t of Corrections and Rehabilitation ("CDCR") has a four-tiered grievance process b y which inmates may file complaints about prison conditions with the prison administrators. S e e generally Brown v. Valoff, 422 F.3d 926, 930 (9th Cir. 2005) (providing an extensive e x p la n a tio n of this process). The initial level of this process is the informal level, at which th e prisoner and prison staff are encouraged to attempt to resolve a dispute or complaint w ith o u t formal procedures. Id. If an issue is not resolved at this level, the complaint p roc ee d s to the first formal level of appeal, which is "usually conducted by the prison's A p p e a ls Coordinator." Id. (citations omitted). If the appeal is denied at the first formal level, it proceeds to the second formal level, where it is generally reviewed by the head of the in s titu tio n at which the inmate is housed. Id. The final level of appeal is referred to as the " D ire c to r's Level Review," and is "conducted by a designee of the Director of the D e p a rt m e n t of Corrections." Id. (citations omitted). Because a decision from this level is n o t appealable, completion of the grievance process through the Director's Level Review g e n e ra lly marks the exhaustion of all available nonjudicial remedies. Id. U p o n filing his staff complaint, Plaintiff was allowed to bypass the informal level and first formal level of appeal. In a letter he received on March 4, 2005 (Dkt. # 18 at 19), P lain tiff was informed by Chief Deputy Warden Scribner that his complaint was partially g ra n te d at the second formal level of appeal and that his "allegations of misconduct [had] b e e n referred for investigation." (Id.)

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T h e standard complaint form used in Salinas Valley State Prison contains a place in w h ic h an inmate may request a Director's Level Review. (Dkt. # 18 at 18.) The instruction h e a d in g above this space states: "If dissatisfied, add data or reasons for requesting a D ire c to r's Level Review, and submit by mail to the third level within 15 days of receipt of re sp o n s e ." (Id.) Plaintiff sought a Director's Level Review by filling out this portion of the f o rm , stating: "I am not satisfied with the response that has been given on this matter. I am s u b m ittin g this appeal for further investigation/adjudication." (Id.) Plaintiff did not sign or d a te this portion of the form, even though the form indicated that he should do so. (Id.) A s ta m p on the copy of the staff complaint in question submitted by Defendants indicates that o n June 24, 2005, Plaintiff's Director's Level Review Appeal was received by the CDCR's Inm ate Appeals Branch. (Dkt. # 29 Pt. 5 at 4.) On August 20, 2005, Plaintiff received a letter stating that his appeal was being re tu rn e d as untimely because "[a]n appellant must submit the appeal within 15 working days o f the event or decision being appealed, or of receiving a lower level decision." (Dkt. # 18 a t 16.) On December 30, 2005, Plaintiff filed a Complaint about the incident in question in th e United States District Court for the Eastern District of California. (Dkt. # 1.) On August 8 , 2008, Plaintiff filed his Second Amended Complaint alleging violations of his civil rights p u rs u a n t to 42 U.S.C. § 1983. (Dkt. # 18.) On April 24, 2009, Defendants filed the instant m o tio n to dismiss, arguing that Plaintiff failed to exhaust nonjudicial remedies. (Dkt. # 29.) D IS C U S S IO N L e g a l Standard " [ T ]h e failure to exhaust nonjudicial remedies . . . should be treated as a matter in a b a te m e n t, which is subject to an unenumerated Rule 12(b) motion rather than a motion for s u m m a ry judgment." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond t h e pleadings and decide disputed issues of fact. If the district court concludes that the

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p riso n e r has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim w ith o u t prejudice." Id. at 1119-20 (citation omitted). II . Analysis D e f e n d a n ts argue that this action should be dismissed because Plaintiff has failed to e x h a u s t all administrative remedies as required by 42 U.S.C. § 1997e(a). (Dkt. # 29 at 3.) 4 2 U.S.C. § 1997e(a) states that "no action shall be brought with respect to prison conditions u n d e r section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, p riso n , or other correctional facility until such administrative remedies as are available are e x h a u ste d ." Defendants assert that because Plaintiff's Director's Level Appeal was rejected a s untimely, Plaintiff has only completed the appeal process through the second level. (Id. a t 5.)1 P la in tif f responds by arguing that on March 25, 2005, he "placed his [Director's Level A ]p p e a l in a postage prepaid envelope and gave the envelope to a correctional officer to be d e p o site d in the United States mail." (Dkt. # 35 at 7; Dkt. # 35 Ex. 3 at 16.) Plaintiff argues th a t because March 25th was the fifteenth working day after March 4th, his appeal was tim ely, and he "should not be penalized for prison officials failing to ensure that Plaintiff's a p p e a l was delivered in a timely fashion." (Dkt. # 35 at 7.)2

Defendants also argue that "[Plaintiff] could have responded to the screen out letter w ith an explanation of the tardiness, or, as the letter suggested, consulted with his counselor o r Appeals Coordinator." (Dkt. # 39 at 4.) However, the text of the rejection letter does not inf o rm Plaintiff that he had the option to write a letter explaining the reason for the appeal's tar d in e ss . Nor does the letter explain that the appeal's rejection may be reconsidered if P la in tif f was able to provide a reasonable explanation for the appeal's tardiness, and D e f en d a n ts have not established that Plaintiff was aware of any alternative procedure for p u rs u in g his grievance nonjudicially at that point. Thus, any such response was not an " a v a ila b le remedy." Plaintiff also argues that his partially-granted second level appeal exhausted all a v a ila b le nonjudicial remedies because, as it was classified as a staff complaint, "there was n o possibility that it would be investigated again, separately, through the appeals process." S e e Brown, 422 F.3d at 939. Because the Court relies on the Plaintiff's first argument as the b a sis for its ruling, the Court need not resolve this alternative argument. -42

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A p p e a ls that are submitted after their deadline do not satisfy the statutory exhaustion re q u ire m e n t. See Woodford v. Ngo, 548 U.S. 81, 102 (2006) (overturning a Ninth Circuit o p in io n holding that a prisoner's appeal that was rejected as untimely exhausts all nonjudicial re m e d ie s). However, it is well-settled in the Ninth Circuit that "[d]efendants have the burden o f raising and proving the absence of exhaustion." Wyatt, 315 F.3d at 1119. This is, in part, b e c au s e "prison officials are likely to have greater legal expertise and, as important, superior a c ce ss to prison administrative records." Id. Examples of relevant evidence in meeting such a burden "would include statutes, regulations, and other official directives that explain the s c o p e of the administrative review process; documentary or testimonial evidence from prison o f f ic ia ls who administer the review process; and information provided to the prisoner c o n c ern in g the operation of the grievance procedure. . . ." Brown, 422 F.3d at 937. Where th e evidence presents a factual issue, "the general view is that . . . the court has broad d is c re tio n as to the method to be used in resolving the factual dispute." Ritza v. Int'l L o n g s h o re m e n 's & Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988). H e re , as Defendants do not dispute that the appeal was indeed mailed, they must prove o n ly that the letter was handed to the officer for mailing on a date after March 25, 2005. D e f e n d a n ts have submitted over twenty pages of documentation in an attempt to meet their b u rd e n of proof. (Dkt. # 29 Pt. 2-6.) Although this litigation concerns just one staff c o m p l a in t filed by Plaintiff while he was incarcerated at Salinas Valley State Prison, No. 050 0 3 2 0 , the documentation includes the affidavits of five CDCR officers at various levels of em p lo ym e n t and various facilities. The first three affidavits, those submitted by Officers S a n tia g o (Dkt. # 29 Pt. 2), Huckabay (Dkt. # 29 Pt. 3), and Reyes (Dkt. # 29 Pt. 4), do not p ro v id e any evidence that contributes to Defendants' burden, as the information contained th e re in relates to complaints filed by Plaintiff at California Training Facility, Pleasant Valley S ta te Prison, and Mule Creek State Prison, respectively. The fourth affidavit, that of E. M e d in a (Dkt. # 29 Pt. 5), does contain information about complaint No. 05-00320, but m e r e ly states that the complaint was received on March 3, 2005, that it was classified as a

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" sta f f complaint," and that it was "granted in part" at the second level of appeal.3 This d o c u m e n t does not provide any additional information about the complaint in question, nor d o e s it offer any explanation as to what, if anything, may have happened to it at the D ire c to r' s Level Review stage of the appeal. The fifth affidavit is that of N. Grannis (Dkt. # 29 Pt. 6), whose office is responsible f o r "review of inmate appeals at the Director's Level, the third and final level of d e p a rtm e n ta l administrative review." (Id.) This affidavit states that Plaintiff submitted only f o u r Director's Level appeals that were accepted for review between January 11, 2005, and D e c e m b e r 30, 2005, none of which were No. 05-00320. (Id.) However, the affidavit states th a t N. Grannis' department "maintains records that show whether the [Inmate Appeals B ran ch ] accepted an inmate appeal for a Director's Level Review." (Id. (emphasis added).) T h is document does not state if, or when, Grannis' office received complaint No. 05-00320, m u c h less does it state whether Plaintiff handed the complaint to a guard for mailing on M a rc h 25, 2005. T h e evidence that Defendants have submitted is insufficient to prove that Plaintiff did n o t hand his Director's Review Level appeal of staff complaint No. 05-00320 to a corrections o f f ic e r for mailing on March 25, 2005. Defendants have not submitted copies of any prison m a il log, a copy of the postmarked envelope in which staff complaint No. 05-00320 was m a ile d , affidavits from the guards that were on duty on March 25, 2005, or any other e v id e n c e to controvert Plaintiff's statement that he handed the letter to a guard on that date. D e f en d a n ts therefore have not met their burden of proof. A d d itio n a lly, Defendants cannot prevail on their argument that Plaintiff's failure to s i g n and date the appeal makes him incapable of proving that he gave it to a correctional o ff ic er on March 25, 2005. (Dkt. # 39 at 4.) Plaintiff did not sign and date his Director's R e v ie w Level Appeal, but his failure to do so does not establish that the appeal was untimely.

The document had also attached copies of four of Plaintiff's five complaints, in c lu d in g a copy of complaint No. 05-00320. -6-

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A s an affirmative defense, a motion to dismiss for failure to exhaust nonjudicial remedies re q u ire s that Defendants affirmatively prove a failure to exhaust those remedies rather than m e re ly point out Plaintiff's lack of evidence. Wyatt, 315 F.3d at 1119. T h is case is analogous to Dole v. Chandler, 438 F.3d 804 (7th Cir. 2006), in which the Seventh Circuit overturned a district court's granting of a motion to dismiss for failure to exhaust nonjudicial remedies where a plaintiff asserted that he submitted his appeal for m ailin g in a timely manner, even though the complaint was never received by the prison's a p p e al board. In Dole, the inmate plaintiff mailed his complaint by "placing his envelope in th e `chuckhole' of his cell for the guard to pick up and mail." Id. at 807. Once he was in f o rm e d that his appeal was never received by the appropriate authorities, and upon belief th a t another appeal would also have been untimely, the plaintiff filed an action pursuant to 4 2 U.S.C. § 1983 in federal district court. Id. at 808. When his complaint was dismissed for f a i l u r e to exhaust nonjudicial remedies, the plaintiff appealed. Id. The Seventh Circuit re v e rs e d the dismissal, stating that "Dole could not maintain control of his complaint once th e guard picked it up. . . . Because Dole properly followed procedure and prison officials w e re responsible for the mishandling of his grievance, it cannot be said that Dole failed to e x h a u st his administrative remedies." Id. at 810-11. T h e Dole court adopted the logic set forth by the Supreme Court in Houston v. Lack, 4 8 7 U.S. 266 (1988), stating: the pro se prisoner has no choice but to entrust the forwarding o f his notice of appeal to prison authorities whom he cannot c o n tro l or supervise and who may have every incentive to delay. . . . And if there is a delay the prisoner suspects is attributable to th e prison authorities, he is unlikely to have any means of p ro v in g it, for his confinement prevents him from monitoring th e process sufficiently. . . . The only information he will likely h a v e is the date he delivered the notice to those prison a u th o ritie s and the date ultimately stamped on his notice.

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D o le , 438 F.3d at 812 (citing Houston, 487 U.S. at 270-72).4 Both the Dole and Houston c o u rts recognized that this approach introduces the risk that all prisoners will "fraudulently c la im that their appeal was mailed within the statutory deadline" when it was not. Id. N o n e th e les s, both courts held that the risk of unfair prejudice to truthful pro se prisoner litig a n ts outweighed the potential danger of other fraudulent claims. Id. ("[T]he potential for f ra u d does not justify obligating truthful prisoners to prove that they mailed their complaints w h e n the prison authorities do not provide them with means for verification."); see also H o u s to n , 487 U.S. at 270-72. In this case, Defendants have presented no evidence that calls into question Plaintiff's a ss e rtio n that he handed his appeal to a prison official to be mailed on March 25, 2005. The e v id e n c e submitted by Defendants is therefore insufficient to establish that Plaintiff's appeal w as untimely. As such, Defendants have failed to meet their burden of proving Plaintiff's f a ilu r e to exhaust available nonjudicial remedies. C O N C L U SIO N D e f e n d a n ts have not established that Plaintiff failed to exhaust nonjudicial remedies. Therefore, I T IS HEREBY ORDERED that Defendants' Motion to Dismiss (Dkt. # 29) is D E N IE D . D A T E D this 30th day of July, 2009.

The Court recognizes that Houston adopted the "Prison Mailbox Rule," stating that a pro se prisoner's legal document is considered to be "filed" with the clerk of the court w h e n it has been given to the prison official that is responsible for its mailing. Although H o u s to n is concerned with pro se prisoner litigation in the court systems as opposed to the p riso n appeals process, its rationale is nonetheless relevant to the Court's evaluation of this m a t te r . -8-

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