Tung v. Hartley et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending Granting 36 Defendants' Motion to Dismiss and Dismissing Action, without Prejudice, for Failure to Exhaust Administrative Remedies, signed by Magistrate Judge Gerald B. Cohn on 3/7/12. Referred to Judge Ishii. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BALWINDER SINGH TUNG,
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Plaintiff,
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v.
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JAMES HARTLEY, et al.,
CASE NO. 1:08-cv-00457-AWI-GBC (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING GRANTING
DEFENDANTS’ MOTION TO DISMISS AND
DISMISSING ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES
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Doc. 36
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Defendants.
/ OBJECTIONS DUE WITHIN THIRTY DAYS
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Findings and Recommendations
I. Procedural History
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On March 31, 2008, Plaintiff Balwinder Singh Tung (“Plaintiff”), a state prisoner proceeding
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in forma pauperis and represented by retained counsel, Marc E. Grossman, Esq., filed this civil rights
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action pursuant to 42 U.S.C. § 1983. On March 3, 2011, the Court adopted findings and
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recommendations that Plaintiff’s third amended complaint proceed on his cognizable claims against
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Defendants Governor Schwarzenegger and Secretary Cate of the California Department of
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Corrections and Rehabilitation (“Defendants”) for Eighth Amendment deliberate indifference to
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health and cruel and unusual punishment, due to Defendants’ policy of housing prisoners in
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buildings that exceeded 100 percent of their design capacity, and that this resulted in “dirty air” that
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caused him to have pneumonia and other lung diseases and problems. Docs. 27 & 29.
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On April 14, 2011, the Court issued a second informational order, advising Plaintiff that
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Defendants may file an unenumerated 12(b) motion to dismiss for failure to exhaust administrative
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remedies and how Plaintiff must oppose the motion in order to avoid dismissal, pursuant to Wyatt
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v. Terhune, 315 F.3d 1108, 1119 (9th. Cir. 2003) (citing Ritza v. Int’l Longshoremen’s &
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Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). Doc. 32. On October 12,
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2011, Defendants filed a motion to dismiss for failure to exhaust administrative remedies. Doc. 36.
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On December 8, 2011, Plaintiff filed an opposition to Defendants’ motion to dismiss. Doc. 42. On
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December 13, 2011, Defendants filed a reply to Plaintiff’s opposition. Doc. 43.
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II. Motion to Dismiss for Failure to Exhaust Administrative Remedies
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A. Legal Standard
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Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be
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brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a
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prisoner confined in any jail, prison, or other correctional facility until such administrative remedies
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as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is
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therefore mandatory, and no longer left to the discretion of the district court. Woodford v. Ngo, 548
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U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). The PLRA’s exhaustion
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requirement requires “proper exhaustion” of administrative remedies. Ngo, 548 U.S. at 93. This
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means “[p]risoners must now exhaust all ‘available’ remedies,” id. at 85, in “compliance with an
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agency’s deadlines and other critical procedural rules.” Id. at 90–91. The requirement cannot be
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satisfied “by filing an untimely or otherwise procedurally defective administrative grievance or
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appeal.” Id. Further, the remedies “available” need not meet federal standards, nor need they be
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“plain, speedy and effective.” Porter v. Nussle, 435 U.S. 516, 524 (2002); Booth, 532 U.S. at 739-40
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& n.5.
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It is the prison’s requirements, and not the PLRA, that define the boundaries of proper
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exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007). The California Department of Corrections and
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Rehabilitation (“CDCR”) provides inmates the right to file administrative appeals alleging
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misconduct by correctional officers or “any departmental decision, action, condition, or policy which
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they can demonstrate as having an adverse effect upon their welfare.” See Cal. Code Regs. tit. 15,
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§§ 3084.1(a) & (e). In order to exhaust all available administrative remedies within this system, a
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prisoner must submit his complaint as an inmate appeal on a 602 form, within fifteen1 working days
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from the date the administrative decision or action being complained of, and proceed through several
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levels of appeal: (1) informal level grievance filed directly with any correctional staff member; (2)
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first formal level appeal filed with one of the institution’s appeal coordinators; (3) second formal
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level appeal filed with the institution head or designee; and (4) third formal level appeal filed with
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the CDCR director or designee. Id. at §§ 3084.5 & 3084.6(c); Brodheim v. Cry, 584 F.3d 1262,
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1264–65 (9th Cir. 2009); Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). See Ngo v.
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Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008) (Ngo II) (finding claims unexhausted where filed
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more than fifteen working days after deadline).
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Non-exhaustion under § 1997e(a) is an affirmative defense, which should be brought by the
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defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b).
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Jones, 549 U.S. at 216; Wyatt, 315 F.3d at 1119. In deciding a motion to dismiss for failure to
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exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed
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issues of fact. Wyatt, 315 F.3d at 1119-20. If the Court concludes that the prisoner has failed to
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exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
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B. Analysis
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Plaintiff did not file a grievance regarding his allegations that prison overcrowding caused
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him to have pneumonia and other lung diseases and problems. See 3d Am. Compl. at 2, Doc. 26; 2d
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Am. Compl. at 2, Doc. 24; Compl. at 2, Doc. 1. Plaintiff alleges that he is exempt from the
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requirements of exhaustion because he would be unable to obtain money damages through the prison
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grievance system. See id.; see also Pl. Opp’n at 3, Doc. 42.
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Exhaustion is a prerequisite to suit even if the relief sought by an inmate, notably money
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damages, is not available in the administrative process. Porter, 534 U.S. at 524; Griffin v. Arpaio,
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557 F.3d 1117, 1119 (9th Cir. 2009). However, in addition to damages, Plaintiff also seeks an
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injunction ordering that he be placed in a single cell or bunk, as a remedy for the harm to his health
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As of July 2011, inmates have thirty calendar days to file appeals. § 3084.8(b).
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caused by being housed in a cell or dorm with other inmates. Pl. Opp’n at 4, Doc. 42.
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In Plaintiff’s opposition, he contends that he did submit inmate appeals and attached copies
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of inmate appeals in support of his argument. See Pl. Opp’n, Doc. 42. However, the inmate appeals
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Plaintiff attached refer to complaints regarding his diabetic needs and property loss claims. See id.
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None of these appeals involve a complaint that Defendants subjected Plaintiff to prison
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overcrowding, which caused him to have pneumonia and other lung diseases and problems.
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For purposes of the PLRA’s exhaustion requirement, “a grievance suffices if it alerts the
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prison to the nature of the wrong for which redress is sought.” Griffin, 557 F.3d at 1120. Ultimately,
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a grievance must “provide enough information . . . to allow prison officials to take appropriate
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responsive measures.” Id. at 1121. Plaintiff’s appeals regarding his diabetic needs and property loss
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claims did not alert the prison officials of the pending claims in this civil action, pursuant to Griffin
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and the PLRA.
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In Ngo, the Supreme Court held that full and “proper exhaustion of administrative remedies
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is necessary.” Id. at 84. While the Supreme Court recognized that this may be harsh, it noted that pro
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se prisoners who litigate in federal court will likewise be “forced to comply with numerous
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unforgiving deadlines and other procedural requirements.” Id. at 103. The Supreme Court recognized
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that this will prevent certain prisoner cases from proceeding, but notes that a “centerpiece of the
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PLRA’s effort to reduce the quantity . . . of prisoner suits is an ‘invigorated’ exhaustion provision,
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§ 1997e(a).” Id. at 84 & 103. “Exhaustion is no longer left to the discretion of the district court, but
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is mandatory.” Id. at 85.
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There is no record before this Court that Plaintiff filed a grievance with respect to his
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allegations that prison overcrowding caused him to have pneumonia and other lung diseases and
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problems. Thus, Plaintiff failed to exhaust all his mandatory administrative remedies against
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Defendants prior to initiating this action, which requires mandatory dismissal, in accordance with
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§ 1997e(a) and Ngo.
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//
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III. Conclusion and Recommendation
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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Defendants motion to dismiss, filed October 12, 2011, is GRANTED;
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2.
This action is DISMISSED, without prejudice, for Plaintiff’s failure to exhaust
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administrative remedies, pursuant to 42 U.S.C. § 1997e(a); and
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3.
The Clerk of the Court is directed to close the case.
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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 28 U.S.C. § 636(b)(1). Within thirty (30) days
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after being served with these Findings and Recommendations, the parties may file written objections
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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” The parties are advised that failure to file objections within the specified time
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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th
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Cir. 1991).
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IT IS SO ORDERED.
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Dated:
7j8cce
March 7, 2012
UNITED STATES MAGISTRATE JUDGE
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