Thompson v. Kernan, et al.
Filing
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FINDINGS and RECOMMENDATIONS recommending Granting Defendants' 63 Motion to Dismiss for Failure to Exhaust Administrative Remedies signed by Magistrate Judge Sandra M. Snyder on 05/03/2011. Referred to Judge Wanger; Objections to F&R due by 6/6/2011. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TRAVIS RAY THOMPSON,
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CASE NO. 1:07-cv-00572-OWW-SMS PC
Plaintiff,
Defendants.
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(ECF Nos. 63, 67, 68)
v.
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FINDINGS AND RECOMMENDATIONS
RECOMMENDING
GRANTING
DEFENDANTS’ MOTION TO DISMISS FOR
FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES
ALVAREZ, et al.,
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OBJECTIONS DUE WITHIN THIRTY DAYS
/
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I.
Procedural History
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Plaintiff Travis Ray Thompson (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the
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third amended complaint, filed July 13, 2009, against Defendants Alvarez and Redenius for use of
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excessive force in violation of the Eighth Amendment. (ECF No. 31.) Defendants filed a motion
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to dismiss on December 17, 2010. (ECF No. 63.) Plaintiff filed an opposition on January 14, 2011.
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(ECF No. 67.) Defendants filed a reply on January 27, 2011. (ECF No. 70.)
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II.
Legal Standard
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Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with
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respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
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confined in any jail, prison, or other correctional facility until such administrative remedies as are
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available are exhausted.” 42 U.S.C. § 1997e(a). The section 1997e(a) exhaustion requirement
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applies to all prisoner suits relating to prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006).
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All available remedies must be exhausted, not just those remedies that meet federal standards,
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Woodford, 548 U.S. at 84, nor must they be “plain, speedy, and effective,” Booth v. Churner, 532
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U.S. 731, 739 (2001). Prisoners must complete the prison’s administrative process, regardless of
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the relief sought by the prisoner and regardless of the relief offered by the process, as long as the
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administrative process can provide some sort of relief on the complaint stated. Id at 741; see
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Woodford, 548 U.S. at 93.
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The California Department of Corrections has an administrative grievance system for
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prisoner complaints. Cal. Code Regs., tit. 15 § 3084, et seq. “Any inmate or parolee under the
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department’s jurisdiction may appeal any departmental decision, action, condition, or policy which
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they can demonstrate as having an adverse effect upon their welfare.” Cal. Code Regs., tit. 15 §
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3084.1(a). Four levels of appeal are involved, including the informal level, first formal level, second
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formal level, and third formal level, also known as the “Director’s Level.” Cal. Code Regs. tit 15,
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§ 3084.5.
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Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative
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defense which defendants have the burden of raising and proving the absence of exhaustion. Lira
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v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). The failure to exhaust nonjudicial administrative
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remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a
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summary judgment motion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (citing Ritza
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v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)).
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“In deciding a motion to dismiss for failure to exhaust, a court may look beyond the pleadings and
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decide disputed issues of fact.” Sapp v. Kimbrell, 623 F.3d. 813, 821 (9th Cir. 2010) (quoting
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Wyatt, 315 F.3d at 1119-20). If the court concludes that the prisoner has failed to exhaust
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administrative remedies, the proper remedy is dismissal without prejudice, even where there has
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been exhaustion while the suit is pending. Lira, 427 F.3d at 1171.
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III.
Discussion
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On June 13, 2006, Plaintiff withheld his breakfast tray in order to seek the attention of prison
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supervisors so he could gain access to his legal work. Defendants Alvarez and Redenius allegedly
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responded by kicking Plaintiff’s door. Defendants then accused Plaintiff of kicking the door so they
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could pepper spray him. Plaintiff alleges that he was pepper sprayed by Defendants Alvarez and
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Redenious. After being pepper sprayed Defendants failed to decontaminate Plaintiff and left him
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to suffer the effects of the pepper spray.
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Defendants move to dismiss the complaint because Plaintiff failed to exhaust his
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administrative remedies. A review of the inmate appeals filed by Plaintiff between June 1, 2006 and
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August 31, 2006, reveals that he did not file a grievance on the incidents alleged in the complaint.
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(Sampson Declararion in Support of Motion to Dismiss 2:-3, ECF No. 63-2.)
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Plaintiff claims that Defendants screened out his inmate appeal claiming that the related
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administrative rules violation report had not been adjudicated and would not permit his appeal to be
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processed. Plaintiff then sent the grievance to the Office of the Inspector General and Internal
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Affairs. (Opposition 3, ECF No. 67.) Plaintiff includes correspondence dated July 28, 2006, from
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the Deputy Inspector General informing him that he must first demonstrate his attempts to resolve
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the issues by completing the formal administrative process at the prison; a letter from the Chief
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Deputy Warden dated September 13, 2006, addressing the letter Plaintiff sent to the Office of
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Internal Affairs; and an inmate appeal form dated August 13, 2006, regarding an issue unrelated to
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the claims against Defendants in this action. (Id., pp. 8, 10, 14-16.)
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Defendants respond that Plaintiff has submitted no evidence to support his contentions that
he submitted an inmate appeal. (Reply 2, ECF No. 68.)
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The requirement that prisoners pursue administrative remedies allows prison officials to
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correct their mistakes and allows for grievances to be resolved more quickly and economically than
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litigating in court. Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010.) The Ninth Circuit has
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recognized an exception to the exhaustion requirement where prison officials render administrative
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remedies effectively unavailable by improperly screening a prisoner complaint. To fall within this
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exception the inmate must establish that he actually filed a grievance that would have sufficed to
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exhaust his claims had he pursued it through the administrative remedy process and that prison
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officials screened his compliant for reasons inconsistent with or unsupported by the regulations. Id.
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at 823-24.
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Plaintiff’s has not set forth evidence to support his claim that he was obstructed in filing an
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administrative appeal regarding the incident alleged.. Plaintiff claims to have submitted an inmate
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appeal that was screened out, however he presents no evidence supporting his claim. The inmate
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appeal which was submitted with Plaintiff’s opposition would not suffice to exhaust the claims he
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in proceeding on in this action. Sapp v. Kimbrell, 623 F.3d at 823-24. Plaintiff includes the letter
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from the Deputy Inspector General informing him that he needs to exhaust his administrative
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remedies, but does not include the grievance form he alleges he included with his letter. The inmate
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appeal which Plaintiff includes in his motion does not relate to the incident alleged here. Defendants
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have submitted documentation evidencing that no inmate appeal was submitted on this incident.
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Plaintiff exhibits demonstrating that he received a response from the Office of Internal
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Affairs and the Deputy Inspector General do not show that he attempted to exhaust his administrative
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remedies. None of the letters submitted with Plaintiff’s objection refer to an inmate appeal included
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with the correspondence. Plaintiff’s response from the Chief Deputy Warden states that it is in
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response to the letter Plaintiff wrote to the Officer of Internal Affairs. Plaintiff has failed to submit
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any evidence that an appeal was submitted. The Court finds that Defendants have submitted
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sufficient evidence to show that Plaintiff failed to exhaust administrative remedies.
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IV.
Conclusion and Recommendation
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Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, without
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prejudice, based on Plaintiff’s failure to comply with 42 U.S.C. § 1997e(a) by exhausting his claims
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prior to filing suit.
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This finding and recommendation will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)
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days after being served with this finding and recommendation, Plaintiff may file written objections
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with the Court. The document should be captioned “Objection to Magistrate Judge’s Finding and
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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may
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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
icido3
May 3, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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