Nible v. Knowles, et al.

Filing 43

ORDER DENYING Defendant's Motion to Dismiss 36 ; ORDER REQUIRING Defendant to File Answer Within Twenty Days, signed by Magistrate Judge Dennis L. Beck on 8/16/10: Defendant's Motion to Dismiss is DENIED in its entirety; and Defendant is to serve and file an answer to Plaintiff's Second Amended Complaint within twenty (20) days. (Hellings, J)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 WILLIAM NIBLE, 10 11 v. (DOC. 36) 12 KNOWLES, et al., 13 14 15 16 I. 17 Background Plaintiff William Nible ("Plaintiff") is a prisoner in the custody of the California Order Defendants. / ORDER REQUIRING DEFENDANT TO FILE ANSWER WITHIN TWENTY DAYS Plaintiff, CASE NO. 1:06-CV-01716-DLB PC ORDER DENYING DEFENDANT'S MOTION TO DISMISS

UNITED STATES DISTRICT COURT

18 Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding 20 on Plaintiff's second amended complaint, filed July 21, 2009, against Defendant E. Flores for 21 violation of the First Amendment. On December 4, 2009, Defendant filed a motion to dismiss 22 for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and pursuant to 23 the unenumerated portion of Rule 12(b) for failure to exhaust administrative remedies. (Def.'s 24 Mot. Dismiss, Doc. 36.) On January 22, 2010, Plaintiff filed his opposition.1 (Pl.'s Opp'n, Doc. 25 41.) On May 19, 2010, Defendants filed their reply. (Defs.' Reply, Doc. 42.) The matter is 26 submitted pursuant to Local Rule 230(l). 27 28
Plaintiff was provided with the requirements for opposing an unenumerated 12(b) motion in the Court's s e c o n d informational order, issued September 3, 2009. Wyatt v. Terhune, 315 F.3d 1108, 1114 (9th Cir. 2003).
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Pursuant to Local Rule 230(l), the moving party is required to respond to the non-moving

2 party's opposition within 10 days from the date of service of the opposition. Defendants' reply is 3 nearly four months late. The Court will thus not consider the reply. 4 II. 5 Summary Of Second Amended Complaint Plaintiff contends that on three occasions, Defendant E. Flores deprived Plaintiff of his

6 First Amendment right to send and receive mail. Plaintiff contends that on June 5, 2006, his mail 7 had been returned to sender without giving Plaintiff any notice. Plaintiff alleges that on June 8, 8 2006, he was notified by a bookstore that his order had been returned to sender under the direct 9 supervision and knowledge of Defendant Flores, without notice. Plaintiff alleges that on June 9, 10 2006, another order was being refunded, because it was being returned to sender. 11 III. 12 13 Failure To State A Claim A. Legal Standard

A complaint must contain "a short and plain statement of the claim showing that the

14 pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 15 required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 17 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual 18 matter, accepted as true, to `state a claim that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 19 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 20 conclusions are not. Id. at 1949. 21 22 B. Analysis

Defendant contends that Plaintiff's claims are premised on respondeat superior liability

23 and fail as a matter of law. Under § 1983, Plaintiff must demonstrate that each defendant 24 personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th 25 Cir. 2002). The Supreme Court recently emphasized that the term "supervisory liability," loosely 26 and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949. 27 "Government officials may not be held liable for the unconstitutional conduct of their 28 subordinates under a theory of respondeat superior." Id. at 1948. Rather, each government 2

1 official, regardless of his or her title, is only liable for his or her own misconduct; therefore, 2 Plaintiff must demonstrate that each defendant, through his or her own individual actions, 3 violated Plaintiff's constitutional rights. Id. at 1948-49. 4 Here, Plaintiff does not allege mere respondeat superior liability. Plaintiff alleges direct

5 knowledge and participation by Defendant E. Flores in returning Plaintiff's mail to sender 6 without notice. At the pleading stage, all allegations of material fact are taken as true and 7 construed in the light most favorable to the plaintiff, Barnett v. Centoni, 31 F.3d 813, 816 (9th 8 Cir. 1994) (per curiam), as long as the allegations state a claim plausible on its face, Iqbal, 129 S. 9 Ct. at 1949. Here, the Court finds Plaintiff's claims plausible, and construing all allegations of 10 material fact as true, Plaintiff raises a cognizable claim for violation of the First Amendment. 11 Defendant's argument thus fails. Defendant's motion to dismiss for failure to state a claim is 12 denied. 13 IV. 14 15 Failure To Exhaust Administrative Remedies A. Legal Standard

Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with

16 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 17 confined in any jail, prison, or other correctional facility until such administrative remedies as are 18 available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 19 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney 20 v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the 21 relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 22 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to 23 prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 24 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative

25 defense under which defendants have the burden of raising and proving the absence of 26 exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The 27 failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an 28 unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 3

1 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th 2 Cir. 1998) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative 3 remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Id. at 4 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, 5 the proper remedy is dismissal without prejudice. Id. 6 7 B. Analysis

The California Department of Corrections and Rehabilitation has an administrative

8 grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). The process 9 is initiated by submitting a CDC Form 602. Id. § 3084.2(a). Four levels of appeal are involved, 10 including the informal level, first formal level, second formal level, and third formal level, also 11 known as the "Director's Level." Id. § 3084.5. Appeals must be submitted within fifteen 12 working days of the event being appealed, and the process is initiated by submission of the 13 appeal to the informal level, or in some circumstances, the first formal level. Id. §§ 3084.5, 14 3084.6(c). In order to satisfy § 1997e(a), California state prisoners are required to use this 15 process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); 16 McKinney, 311 F.3d at 1199-1201. Exhaustion does not always require pursuit of an appeal 17 through the Director's Level of review. What is required to satisfy exhaustion is a fact specific 18 inquiry, and may be dependent upon prison officials' response to the appeal. See Nunez v. 19 Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of exceptions to exhaustion 20 requirement from other circuits); Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005) 21 ("[E]ntirely pointless exhaustion" not required). 22 Defendant relies on Plaintiff's second amended complaint and its attached exhibits to

23 contend that Plaintiff failed to exhaust administrative remedies prior to filing suit. It appears that 24 Defendant places the burden of proving exhaustion of administrative remedies on Plaintiff. That 25 is incorrect. As stated previously, § 1997e(a) does not impose a pleading requirement, but rather, 26 is an affirmative defense under which defendants have the burden of raising and proving the 27 absence of exhaustion. Jones, 549 U.S. at 216; Wyatt, 315 F.3d at 1119. Defendant, not 28 Plaintiff, must first present evidence of failure to exhaust administrative remedies. Defendant 4

1 relies solely on Plaintiff's submissions with his second amended complaint as proof of his failure 2 to exhaust administrative remedies.2 3 According to Plaintiff's submitted documents, he attempted five times to resolve the

4 mailroom issue.3 (Pl.'s Second Am. Compl., Ex. A, Notice to B. Gricewich, dated October 6, 5 2006.) His first attempt occurred on June 20, 2006, when he placed a CDC 602 inmate grievance 6 in the mail and handed it to the floor officer in his building. This was never responded to. 7 Plaintiff's second attempt occurred on July 12, 2006, when he submitted another 602 inmate 8 grievance in the mail for the floor officer. Plaintiff retained a copy of this second attempt. It 9 appears that Plaintiff submitted this inmate grievance for informal level review, addressed to 10 mailroom staff. The third grievance complained that no staff responded, and was filed on August 11 1, 2006 to the appeals coordinator at the First Level. This third grievance was screened out on 12 August 22, 2002 by appeal coordinator C. Pfeiffer for Plaintiff's failure to adequately complete 13 sections A and B of the 602 inmate grievance form, which were left blank. 14 Plaintiff is required to comply with the inmate grievance procedure to properly exhaust

15 administrative remedies. Woodford, 548 U.S. at 85-86. However, if prison officials fail to 16 comply with their own inmate grievance procedures and thus obstruct an inmate's ability to 17 exhaust, there are no available administrative remedies. See Nunez, 591 F.3d at 1224; see also 18 Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) ("[A]n administrative remedy is not 19 considered to have been available if a prisoner, through no fault of his own, was prevented from 20 availing himself of it."); Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) 21 (Courts are "obligated to ensure any defects in exhaustion were not procured from the action of 22 inaction of prison officials."); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) ("Prison officials 23 24 25 26 27 28
For a motion to dismiss, the Court can consider documents that have been submitted as part of a c o m p la in t. Gumataotao v. Dir. Of Dep't of Revenue & Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001). No party c o n te s ts the authenticity of the submitted grievances. P la in tiff's opposition contains several grievances attempting to demonstrate exhaustion of administrative r e m e d ie s . The Court does not find these grievances relevant to this action, as none of the grievances were filed w ith in 15 working days of the events at issue in this action - the return of mail on June 5, June 8, and June 9 of 2006. Woodford, 548 U.S. at 85-86 (holding that compliance with prison's own grievance procedures is necessary to d e m o n s tr a te exhaustion); see Cal. Code Regs. tit. 15, § 3084.6(c) (requiring inmate grievance to be filed within fifte e n working days of event or decision being appealed).
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1 may not take unfair advantage of the exhaustion requirement, [] and a remedy becomes 2 `unavailable' if prison employees do not respond to a properly filed grievance or otherwise use 3 affirmative misconduct to prevent a prisoner from exhausting." (quoting Dole v. Chandler, 438 4 F.3d 804, 809 (7th Cir. 2006))); Boyd v. Corrections Corp. of America, 380 F.3d 989, 996 (6th 5 Cir. 2004) (administrative remedies are exhausted when prison officials fail to timely respond to 6 properly filed grievance); Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (inability to 7 utilize inmate appeals process due to prison officials' conduct or the failure of prison officials to 8 timely advance appeal may justify failure to exhaust); Jernigan v. Stuchell, 304 F.3d 1030, 1032 9 (10th Cir. 2002) (the failure to respond to a grievance within the policy time limits renders 10 remedy unavailable); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (when prison 11 officials fail to respond, the remedy becomes unavailable, and exhaustion occurs); Foulk v. 12 Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (district court did not err when it declined to dismiss 13 claim for failure to exhaust where prison failed to respond to grievance); Powe v. Ennis, 177 F.3d 14 393, 394 (5th Cir. 1999) (when a valid grievance has been filed and the state's time for 15 responding has expired, the remedies are deemed exhausted); Underwood v. Wilson, 151 F.3d 16 292, 295 (5th Cir. 1998) (when time limit for prison's response has expired, the remedies are 17 exhausted). 18 Pursuant to California's inmate grievance procedures, informal responses shall be

19 completed within ten working days. Cal. Code Regs. tit. 15, § 3084.6(b)(1). There is a clear 20 dispute as to whether prison staff complied with the inmate grievance process. This is not to say 21 that Plaintiff has proven that he complied with the prison's inmate grievance procedure and was 22 frustrated through no fault of his own by prison staff. However, because the burden lies with 23 Defendant to demonstrate that Plaintiff failed to exhaust administrative remedies, the Court finds 24 insufficient evidence to support dismissal of this action for failure to exhaust. Defendant has not 25 met his burden. 26 /// 27 /// 28 /// 6

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Conclusion And Order Based on the foregoing, it is HEREBY ORDERED that 1. Defendant's motion to dismiss, filed December 4, 2009, is DENIED in its entirety; and 2. Defendant is to serve and file an answer to Plaintiff's second amended complaint within twenty (20) days.

IT IS SO ORDERED. Dated: 3b142a

August 16, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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