Braley v. Wasco State Prison, et al

Filing 84

FINDINGS and RECOMMENDATIONS Recommending Granting Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies 78 , 81 , 82 , OBJECTIONS DUE WITHIN THIRTY DAYS, signed by Magistrate Judge Barbara A. McAuliffe on 4/16/12: Matter referred to Judge Ishii. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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THOMAS D. BRALEY,

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CASE NO. 1:07-cv-01423-AWI-BAM

Plaintiff,

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING
GRANTING
DEFENDANTS’ MOTION TO DISMISS FOR
FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES

v.

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WASCO STATE PRISON, et al.,

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Defendants.

(ECF Nos. 78, 81, 82)

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OBJECTIONS DUE WITHIN THIRTY DAYS
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Findings and Recommendations - Defendants’ Motion to Dismiss
I.

Procedural History

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Plaintiff Thomas D. Braley (“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. Plaintiff filed this action on

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September 28, 2007. On August 24, 2011, pursuant to 28 U.S.C. § 1915A, the Magistrate Judge

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issued findings and recommendations recommending dismissing certain claims and defendants. On

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October 3, 2011, an order adopting the findings and recommendations issued, and this action is

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proceeding against Defendants Markmann and Miller for failure to protect in violation of the Eighth

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Amendment.1 Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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In the order adopting the findings and recommendations, Plaintiff’s remaining Eighth Amendment claims,
and Defendants W illiams, Martinez, Massa, George, Thompson, W asco State Prison, C. Cooper, and M. Hunter
were dismissed from this action for Plaintiff’s failure to state a cognizable claim.

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On December 15, 2011, Defendant Miller filed a motion to dismiss for failure to exhaust

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administrative remedies. Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on February 6, 2012.2

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Defendant Miller filed a reply on February 13, 2012. On March 28, 2012, Defendant Markmann

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joined in the motion to dismiss. The motion has been deemed submitted. Local Rule 230(l).

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II.

Failure to Exhaust

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A.

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Defendants argue that Plaintiff failed to exhaust his claims in compliance with 42 U.S.C. §

Legal Standard

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1997e(a), subjecting the claims to dismissal. Pursuant to the Prison Litigation Reform Act

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(“PLRA”) of 1995, “[n]o action shall be brought with respect to prison conditions under [42 U.S.C.

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§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

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facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

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The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison

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conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006). All available remedies must be exhausted,

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not just those remedies that meet federal standards, Woodford, 548 U.S. at 84, nor must they be

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“plain, speedy, and effective,” Booth v. Churner, 532 U.S. 731, 739 (2001). Prisoners must complete

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the prison’s administrative process, regardless of the relief sought by the prisoner and regardless of

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the relief offered by the process, as long as the administrative process can provide some sort of relief

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on the complaint stated. Id at 741; see 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). At the time of the claims at issue in this action, four levels of appeal were involved,

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including the informal level, first formal level, second formal level, and third formal level, also

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known as the “Director’s Level.” Cal. Code Regs. tit 15, § 3084.5.

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Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative

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Plaintiff was provided with notice of the requirements for opposing a motion to dismiss for failure to
exhaust in an order filed on October 18, 2011. W yatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003).

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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.
B.

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Discussion
1.

Plaintiff’s Claims

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Plaintiff alleges that on August 9, 2007, while incarcerated at Wasco State Prison, Inmate

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Gary Battle was moved into Plaintiff’s cell. Plaintiff claims that ninety percent of the prison staff

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know Battle from past cell fights. On the first day that Battle was placed in Plaintiff’s cell, he went

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through Plaintiff’s personal property. Plaintiff states that Battle kicked and threw Plaintiff’s

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wheelchair. On August 12, 2007, Plaintiff informed Defendant Markmann about Battle, but

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Defendant Markmann did not do anything about the situation. (Second Amended Compl. 3,3 ECF

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No. 51.)

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On August 24, 2007, Plaintiff gave Defendant Markmann a note listing all the staff that

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Plaintiff had requested move Battle, and Defendant Markmann did not do anything. On August 27,

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2007, Battle told Defendant Markmann that he was going to kill Plaintiff if Plaintiff was not moved

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out of the cell. Defendant Markmann just smiled and walked away. On September 4, 2007, Battle

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threw Plaintiff’s wheelchair and broke it. (Id.)

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On September 9, 2007, Defendant Markmann returned from days off. Defendant Markmann

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spoke to Plaintiff about Plaintiff complaining that Defendant Markmann had not moved Battle.

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All references to pagination of specific documents pertain to those as indicated on the upper right corners
via the CM/ECF electronic court docketing system.

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Defendant Markmann told Plaintiff that he was not moving Battle. On September 17, 2007, Battle

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attacked Plaintiff. Defendant Miller saw Plaintiff being attacked by Battle. Two times Battle told

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Defendant Miller to walk away, and Defendant Miller did. After the attack, Plaintiff was taken to

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the medical clinic. (Id. at 5.)

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2.

Exhaustion of Eighth Amendment Claim

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Defendants contend that, during the time he was housed at Wasco State Prison, Plaintiff filed

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three inmate appeals. None of the appeals filed by Plaintiff address the incidents alleged in the

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second amended complaint. Since Plaintiff did not submit any inmate appeals regarding his claims

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that Defendants Markmann and Miller failed to protect him, Plaintiff failed to exhaust his

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administrative remedies, and the motion to dismiss should be granted.

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In his opposition, Plaintiff does not address Defendants’ contention that he did not file an

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inmate appeal regarding the claims proceeding in this action. Rather Plaintiff argues that he was not

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required to exhaust his administrative remedies in order to bring this action. Plaintiff further alleges

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that, after he was transferred from Wasco State Prison, his property was taken from him, and his

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inmate appeals have not been processed.

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Defendants evidence shows that while Plaintiff was housed at Wasco State Prison he

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submitted three inmate appeals. Two of the appeals grieved ADA accommodations and Plaintiff did

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not pursue the appeals beyond the first level. The second appeal was a medical appeal and was not

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submitted for third level review.

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In support of his opposition, Plaintiff submits seventy three pages of exhibits. A review of

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the inmate appeals which Plaintiff attaches as exhibits, reveals that the appeals all involve incidents

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after he was transferred from Wasco State Prison.

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Plaintiff relies on Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961); White

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v. California, 195 Cal.App.3d 452 (1987); and Graham v. Bryant, 123 Cal.App.2d 66 (1954), to

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support his argument that he is not required to exhaust his administrative remedies prior to filing

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suit. In Deering Milliken, Inc., the plaintiff was seeking an injunction against the National Relations

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Labor Board. The court found that the plaintiff did not need to exhaust administrative remedies

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because the National Labor Relations Act did not provide an adequate remedy for enforcement.
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Deering Milliken, Inc., 295 F.2d at 866. In White the court found that the Education of the

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Handicapped Act (“EHA”) did not have an effective remedy for past wrongs, and therefore, the

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exhaustion requirement did not apply to the handicapped children’s claim that they were

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systematically excluded from EHA services. White v. California, 195 Cal.App.3d at 466. The

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plaintiff in Graham was a civil service employee who was seeking a peremptory writ of mandate.

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The court found that there was no requirement for a civil employee to avail himself of available

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administrative remedies in order to access the court. Graham, 123 Cal.App.2d at 70. None of the

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cases cited address the PLRA, and they do not support Plaintiff’s argument that he is not required

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to exhaust his administrative remedies.

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Since Plaintiff is a prisoner his claims are governed by the PLRA, and under the PLRA the

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exhaustion requirement is mandatory. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).

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The requirement that an inmate exhaust administrative remedies prior to bringing suit serves two

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purposes. “Exhaustion gives an agency an opportunity to correct its own mistakes with respect to

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the programs it administers before being haled into federal court[,]”and “promotes efficiency by

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allowing claims to be resolved much more quickly and economically . . . than in litigation in federal

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court.” Sapp, 623 F.3d at 823 (internal punctuation and citations omitted). The inmate “must

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complete the administrative review process in accordance with the applicable procedural rules,

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including deadlines,” Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010) (citations omitted), as a

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precondition to bringing suit, McKinney, 311 F.3d at 1200; Harvey, 605 F.3d at 683. The PLRA

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requires that the administrative grievance process be completed prior to initiating the action in

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federal court. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006).

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In order to find that Plaintiff’s appeals exhausted his administrative remedies the appeals

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must “ provide enough information . . . to allow prison officials to take appropriate responsive

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measures.” Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009) (quoting Johnson v. Testman,

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380 F.3d 691, 697 (2nd Cir. 2004)). The primary purpose of the grievance is to alert the prison to

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the problem and facilitate resolution. Griffin, 557 F.3d at 1120. “A grievance suffices to exhaust

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a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks redress.

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Sapp, 623 F.3d at 823. None of the appeals submitted by Plaintiff provided information to allow
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prison officials to take appropriate responsive measures to his claims that Defendants Markmann and

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Miller failed to protect him.

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In this instance, Defendants have submitted evidence that Plaintiff did not exhaust his

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administrative remedies, because he failed to file an inmate grievance regarding the claims

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proceeding in this action. Since Plaintiff did not exhaust his administrative remedies prior to filing

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suit, this action must be dismissed, without prejudice. Lira, 427 F.3d at 1171.

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III.

Conclusion and Recommendation

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The Court finds that Plaintiff failed to exhaust his administrative remedies for his failure to

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protect claims against Defendants Markmann and Miller. Accordingly, the Court HEREBY

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RECOMMENDS that Defendants’ motion to dismiss be granted, and this action be dismissed,

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without prejudice, for failure to exhaust administrative remedies.

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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 Title 28 U.S.C. § 636(b)(l). Within thirty (30)

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days after being served with these findings and recommendations, Plaintiff 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.” Plaintiff is 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 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
10c20k

April 16, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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