Saenz v. Spearman, et al.
Filing
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ORDER Denying 35 Defendant's Motion to Dismiss for Failure to Exhaust Administrative Remedies, signed by Magistrate Judge Barbara A. McAuliffe on 8/19/12. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT GONZALES SAENZ,
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Plaintiff,
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CASE NO. 1:09-cv-00557-BAM PC
ORDER DENYING DEFENDANT’S MOTION
TO DISMISS FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES
v.
SGT. D. REEVES,
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(ECF Nos.35, 38, 39, 65, 72, 98, 99)
Defendant.
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I.
Procedural History
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Plaintiff Robert Gonzales Saenz (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on
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the second amended complaint, filed January 14, 2010, against Defendant Reeves for retaliation in
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violation of the First Amendment and deliberate indifference in violation of the Eighth Amendment.
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(ECF No. 16.) On April 22, 2011, Defendant filed a motion to dismiss the retaliation claim for
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failure to exhaust administrative remedies. (ECF No. 35.) Plaintiff filed an opposition on May 10,
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2011, and Defendant filed a reply on May 16, 2011.1 (ECF No. 38, 39.) Plaintiff filed a surreply on
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June 8, 2011, which was stricken from the record. (ECF Nos. 43, 57.) At the request of the Court,
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Defendant provided additional documentation on November 18, 2011, and Plaintiff filed a reply on
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December 14, 2011. (ECF Nos. 65, 72.) On August 6, 2012, Plaintiff filed a supplemental
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Following the Ninth Circuit’s decision in W oods v. Carey, Nos. 09-15548, 09-16113, 2012 W L 2626912,
at *5 (9th Cir. Jul. 6, 2012), Plaintiff was provided with notice of the requirements for opposing a motion to dismiss,
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an d provided with an opportunity to file a supplemental opposition. (ECF Nos. 94, 95.) Plaintiff supplemented on
August 6, 2012.
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opposition, and Defendant filed a reply on August 8, 2012. (ECF Nos. 98, 99.)
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II.
Motion to Dismiss
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A.
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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.
Legal Standard
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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 relevant to this action, four levels of appeal were involved, including the
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informal level, first formal level, second formal level, and third formal level, also known as the
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“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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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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B.
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Defendant Reeves brings this motion to dismiss Plaintiff’s retaliation claims on the grounds
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that Plaintiff did not file a grievance regarding retaliation by Defendant Reeves, and therefore
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Plaintiff failed to exhaust his administrative remedies. Defendant argues that, while Plaintiff asserts
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that he exhausted administrative remedies, the appeals he references were not processed though to
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the Director’s Level. Plaintiff admits that the document that he relies on to exhaust the Reeves
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complaint was returned to him on October 31, 2007. The alleged retaliatory incidents occurred in
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September 2007, and December 2007. The appeal Plaintiff references is dated February 2007, long
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before these incidents occurred and do not exhaust his retaliation claim. Defendant moves to have
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the retaliation claims dismissed for Plaintiff’s failure to exhaust his administrative remedies.
Discussion
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Plaintiff argues that he exhausted his administrative remedies for the retaliation claim by
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appeal No. SATF E-07-00748 and SATF E-06-03710, and the citizens complaint filed at Pleasant
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Valley State Prison on September 28, 2007. Plaintiff claims that since appeal No. SATF E-07-00748
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was granted in part he was not required to further pursue his administrative remedies in order to
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exhaust.
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In his supplemental reply, Plaintiff argues that his multiple appeals have exhausted his
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administrative remedies and attaches 220 pages of exhibit, which are mainly irrelevant to the claims
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here, including inmate appeals dating back to 1998 and habeas petitions. However, Plaintiff does
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submit several inmate appeals that were filed at PVSP, and those documents would be relevant to
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determine if Plaintiff exhausted his administrative remedies for the claims proceeding in this action.
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Initially, the Court fails to understand why Plaintiff relied on appeals submitted at SATF to
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establish exhaustion of administrative remedies. To the extent that Defendants responded to the
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allegations of exhaustion in the second amended complaint and submitted appeals from SATF, this
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is insufficient to meet the burden of establishing failure to exhaust when the incidents alleged in this
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action occurred at PVSP. The lack of appeals filed at SATF regarding incidents that occurred after
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Plaintiff was transferred to another facility does not establish that Plaintiff failed to exhaust his
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administrative remedies at PVSP.
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The incidents at issue in this action occurred at PVSP, and Plaintiff has submitted exhibits
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demonstrating that he did file grievances at PVSP. Inmates are not required to set forth the particular
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legal theory to be advanced in order for a grievance to be sufficient to exhaust administrative
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remedies. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). In order to find that Plaintiff’s
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appeals exhausted his administrative remedies the appeals must “ provide enough information . . .
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to allow prison officials to take appropriate responsive measures.” Griffin, 557 F.3d at 1121
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(quoting Johnson v. Testman, 380 F.3d 691, 697 (2nd Cir. 2004)). The primary purpose of the
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grievance is to alert the prison to the problem and facilitate resolution. Griffin, 557 F.3d at 1120.
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On January 9, 2008, Plaintiff filed Appeal No. PVSP 08-00341 in which he grieved that on
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December 27, 2007, he surrendered a weapon that had been planted in his cell. Plaintiff alleged that
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Defendant Reeves ordered his cell to be searched, and placed Plaintiff in a holding cell in which he
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was held for over three hours. (ECF No. 98 at 66.) During the time Plaintiff was in the holding cell,
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he claimed that Defendant Reeves came by several times and spat at him, ripped a family photo, and
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threatened physical harm to him and his family. (Id. at 66, 68.) Plaintiff alleged that Defendant
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Reeves forced him to move to a cell with no heat coming from the vents. Defendant Reeves was in
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charge of the conditions in the ASU and making Plaintiff stay in a cell without heat was “cruel
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punishment, below decency.” (Id. at 68.) Plaintiff was charged with a rule violation which is
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“contrary to encouragement of rehabilitative efforts” and crushes an inmates desire to act
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responsibly. (Id.) Plaintiff requested the rule violation be dismissed, and he be removed from ASU
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to secure the safety of himself and his property. (Id. at 66.)
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While this grievance does not specifically address Plaintiff’s claim that Defendant Reeves
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retaliated against him, it is sufficient to alert prison officials to Defendant Reeves conduct, which
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is the basis of Plaintiff’s retaliation claim. Accordingly, Defendant has failed to meet his burden of
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raising and proving the absence of exhaustion. Lira, 427 F.3d at 1171.
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III.
Conclusion and Order
Based on the foregoing, IT IS HEREBY ORDERED that Defendant’s motion to dismiss,
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filed April 22, 2011, is DENIED.
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IT IS SO ORDERED.
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Dated:
10c20k
August 19, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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