Lawson v. Youngblood

Filing 54

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 10/29/2012 recommending that 37 MOTION to Dismiss be DENIED. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/16/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD ALAN LAWSON,

CASE NO.

1:09-cv-00992-LJO-MJS (PC)

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Plaintiff,

FINDINGS AND RECOMMENDATION
DENYING WITHOUT PREJUDICE
DEFENDANTS’ MOTION TO DISMISS
ACTION FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES

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v.

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DONALD YOUNGBLOOD, et al.,

(ECF No. 37)

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Defendants.

FOURTEEN (14) DAY DEADLINE

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I.

PROCEDURAL HISTORY
Plaintiff Richard Alan Lawson is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action filed on June 8, 2009 pursuant to 42 U.S.C. §

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1983. (Compl., ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (Consent

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to Jurisdiction, ECF No. 5.) Defendants Embrey, Laird and Sawaske declined Magistrate

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Judge jurisdiction. (Decline of Jurisdiction, ECF No. 32.)

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This matter arose on October 2, 2008, during Plaintiff’s incarceration as a pre-trial

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detainee at the Kern County Central Receiving Facility (“Downtown Jail”) while in the

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custody of the Kern County Sheriff’s Department (“Department”). Plaintiff alleges that, while

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in restraints and awaiting transfer from the Downtown Jail to the Department’s Lerdo

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Detention Facility (“Lerdo”), Defendant Laird pushed him from behind, propelling him face-

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first onto the concrete floor, knocking him unconscious and causing face and mouth

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injuries including an embedded denture in the roof of his mouth, bleeding, and airway

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complications. (Second Am. Compl., ECF No. 21 at 5-8.)

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The matter proceeds on Plaintiff’s Second Amended Complaint for inadequate

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medical care under the Eighth Amendment against Department Defendants Laird, Chang,

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Sawaske, Embrey, and Clemente, and for excessive force under the Eighth Amendment

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against Defendant Laird. (Order on Cognizable Claims, ECF No. 22.) Defendants Laird,

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Sawaske and Embrey filed an Answer on August 1, 2012. (Answer, ECF No. 29). The

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Court filed its Discovery and Scheduling Order on August 2, 2012, providing a dispositive

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motion deadline of June 13, 2013. (Discov. & Sched. Order, ECF No. 30.)

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On September 6, 2012, Defendants Laird, Sawaske and Embrey filed a motion to

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dismiss on the ground that Plaintiff had failed to exhaust his administrative remedies

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pursuant to 42 U.S.C. § 1997e(a). (Mot. Dismiss, ECF No. 37.) On October 4, 2012,

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pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) and Wyatt v. Terhune, 315 F.3d

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1108 (9th Cir. 2003), the Court notified Plaintiff of his rights, obligations and methods for

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opposing the Motion to Dismiss and gave him an opportunity to file opposition by not later

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than October 29, 2012. (Order, ECF No. 45.) Plaintiff filed his opposition to the Motion to

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Dismiss on October 15, 2012.1 (Opp’n to Mot. Dismiss., ECF No. 47.) Defendants Laird,

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Sawaske and Embrey filed their reply on October 22, 2012. (Reply to Opp’n, ECF No. 48.)

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The Motion to Dismiss is now ready for ruling.

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II.

LEGAL STANDARD

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The Prison Litigation Reform Act (“PLRA”) stipulates, “No action shall be brought

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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

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remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Therefore, prisoners are

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required to exhaust all available administrative remedies prior to filing suit. Jones v. Bock,

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549 U.S. 199, 211 (2007). The Supreme Court held that “the PLRA's exhaustion

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Plaintiff’s Opposition is timely under the Court’s October 4, 2012 Order.

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requirement applies to all inmate suits about prison life, whether they involve general

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circumstances or particular episodes, and whether they allege excessive force or some

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other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the exhaustion of

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remedies is required, regardless of the relief sought by the prisoner, as long as the

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administrative process can provide some sort of relief on the prisoner's complaint. Booth

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v. Churner, 532 U.S. 731, 741 (2001). “[P]roper exhaustion of administrative remedies is

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necessary,” and “demands compliance with an agency's deadlines and other critical

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procedural rules . . . .” Woodford v. Ngo, 548 U.S. 81, 83–84, 90 (2006).

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

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affirmative defense under which Defendants have the burden of raising and proving the

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absence of exhaustion. Jones, 549 U.S. at 215; Wyatt, 315 F.3d at 1119. The failure to

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exhaust non-judicial administrative remedies that are not jurisdictional is subject to an

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unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315

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F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365,

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368 (9th Cir. 1998)). In deciding a motion to dismiss for failure to exhaust administrative

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remedies, the Court may look beyond the pleadings and decide disputed issues of fact.

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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. Id.

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The Department provides inmate grievance procedures (“Grievance Procedures”)

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at all its facilities, pursuant to Title 15 of the California Code of Regulations § 1073.2 (Decl.

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Brandon in Supp. at ¶ 4.) The Department has adopted Detention Bureau Policies and

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Procedures, section I-200, entitled “Inmate Grievances”. (Mem. of P. & A. in Supp. at 4:3-4;

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Decl. of Brandon in Supp. at ¶ 4.) The Grievance Procedures allow a process for inmates

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to grieve, the Department to respond, and for inmate’s appeal of the response. (Id. at 4:9-

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11; Decl. Brandon in Supp. at ¶ 5.) Inmates are advised of the Grievance Procedures by

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Cal. Code Regs. tit. 15 § 1073(a) provides for Inmate Grievance Procedures including a
grievance form or instructions for registering a grievance, resolution of the grievance at the lowest level;
appeal to the next level; written reasons for denial at each level; response within a reasonable time; and
provisions for resolving jurisdictional questions.

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facility television and through informational pamphlets. (Mem. of P. & A. in Supp. at 4:14-

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16; Decl. of Barnes in Supp. at ¶¶ 3-4.)

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III.

ARGUMENTS

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A.

Defendants’ Moving Argument

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Defendants argue the Grievance Procedures provide the grievance process for

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inmates in custody of the Department. (Decl. Brandon in Supp. at ¶¶ 4-5.) “[Plaintiff] was

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made aware of the Grievance Procedures to the extent that he bothered to watch the daily

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video or read the distributed pamphlet.” (Mem. of P. & A. in Supp. at 7:4-5; Decl. Barnes

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in Supp. at ¶¶ 3-4.)

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Plaintiff did not file a grievance relating to the October 2, 2008 incident during the

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September 30-October 2, 2008 period he was confined at the Downtown Jail, or the

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October 3, 2008-January 27, 2009 period he remained in custody of the Department at

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Lerdo. (Decl. Trujillo in Supp. at ¶ 3; Decl. Chandler in Supp. at ¶¶ 4-5; Decl. Gordon in

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Supp. at ¶¶ 4-5.)

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Defendants claim Plaintiff’s operative Second Amended Complain does not allege
that he exhausted his administrative remedies. (Mem. of P. & A. in Supp. at 3:18-19.)

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B.

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Plaintiff argues that he has “exhausted every available option”. (Opp’n to Mot.

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Dismiss. at 4.) He received no notice of the Grievance Procedures. (Opp’n to Mot. Dismiss.

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at 3.) “At the time [P]laintiff was injured by jail staff, police and medical staff were informed”

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(Id. at 4), and “the sergeant came over and was personally told about what had occurred,

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he showed absolutely no interest in filing a report or grievance of any kind.” (Id. at 3.)

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Plaintiff’s Opposition Argument

Plaintiff filed a State Tort Claim with the Kern County Board of Supervisors on March
5, 2009, which was deemed rejected on April 2, 2009. (Opp’n to Mot. Dismiss. at 8.)

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His two day detention at the Downtown Jail was “hardly enough time to file a

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grievance” (Opp’n to Mot. Dismiss at 2); once he transferred to Lerdo the [Grievance

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Procedure] would have been an act in futility, as the other facility would not entertain a

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grievance concerning another facility.” (Id. at 4.)
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Defendants falsely suggest they have incorporated the same grievance procedures
as set forth in [Cal. Code Regs. tit. 15.] Id. at 2.

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He claims that his Second Amended Complaint does in fact allege exhaustion of
administrative remedies. (Sec. Am. Compl. at 10.)

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C.

Defendants’ Reply Argument

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Defendants argue that Plaintiff’s California Tort Claims Act Claim filed with the Kern

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County Board of Supervisors is not sufficient to satisfy the 42 U.S.C. § 1997e(a)

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exhaustion requirements. (Reply to Opp’n at 3:1-25.)

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Plaintiff had access to the Grievance Procedures during the several month period

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he was in custody of the Department, but chose not to file a grievance. (Reply to Opp’n at

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3:27-4:5.)

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IV.

ANALYSIS

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A.

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Defendants fail to provide sufficient information to establish the Grievance

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Procedures they ask the Court to enforce. Defendants have not provided the Grievance

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Procedures, or otherwise enlightened as to the contents thereof. See Sanchez v. Stancliff,

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2009 WL 2498257 at *3 (E.D. Cal. August 14, 2009) (“[c]ompliance with prison grievance

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procedures . . . is all that is required by the PLRA to ‘properly exhaust.’ The level of detail

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necessary in a grievance to comply with the grievance procedures will vary from system

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to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that

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define the boundaries of proper exhaustion.”) (citing Jones, 549 U.S. at 218). Nothing

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before the Court suggests how a Department grievance is to be registered (e.g., verbal or

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in writing), what information is required, to whom the grievance is to be presented, and the

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time frame(s) for presentation. “A prison's own procedures define the contours of proper

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exhaustion.” Sanchez, 2009 WL 2498257 at *3 (citing Jones, 549 U.S. at 218). It appears

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that, at least at some point the Department allowed for verbal registration of inmate

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grievances. Sanchez, 2009 WL 2498257 at *2.

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Grievance Procedures

Defendants have failed to carry their burden of establishing the Grievance
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Procedures.

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B.

Exhaustion of Grievance Procedures

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Defendants fail to demonstrate Plaintiff’s failure to exhaust the Grievance

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Procedures. The Court has not been provided with the Grievance Procedures. “When a

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prison’s grievance procedures are silent or incomplete as to factual specificity, a ‘grievance

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suffices if it alerts the prison to the nature of the wrong for which redress is sought,’”

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Sanchez, 2009 WL 2498257 at *3 (citing Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.

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2009)) (citing Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)).

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Defendants have not shown any requirement for a written grievance or that a verbal

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grievance is insufficient, or any time frame for registering a grievance. It appears that on

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the day of the incident, October 2, 2008, supervisory staff at the Downtown Jail were

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alerted of the nature of the alleged wrong. Plaintiff requested

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immediately following the event, (Second Am. Compl. at 5), at that time Plaintiff told

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Downtown Jail supervisory staff, Sergeant Chang, what had happened (Id.; Opp’n to Mot.

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Dismiss. at 3.) Additionally, Plaintiff claims police and medical were informed (Id. at 4), and

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that upon his arrival at Lerdo, Department staff there had him hospitalized for eight weeks

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for these injuries. (Sec. Am. Compl. at 7.) Plaintiff contends he was not provided with, or

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made aware of the Grievance Procedures, and that Downtown Jail staff did not make any

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report of the incident. (Opp’n to Mot. Dismiss. at 3.) However, it appears the Department

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was made verbally aware of the incident and the circumstances surrounding it. Defendants

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have not established the absence of a verbal grievance.

medical assistance

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The Ninth Circuit has held that the standards established in Strong are appropriately

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applied to ascertain whether prisoner grievances/appeals are sufficient to notify prison

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personnel of a problem for exhaustion purposes. Griffin, 557 F.3d at 1120. "[I]f prison

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regulations do not prescribe any particular content for inmate grievances, 'a grievance

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suffices if it alerts the prison to the nature of the wrong for which redress is sought. As in

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a notice pleading system, the grievant need not lay out the facts, articulate legal theories,

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or demand particular relief. All the grievance need do is object intelligibly to some asserted
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shortcoming.'" Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004), quoting Strong, 297

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F.3d at 650.

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In addition, where a prison's appeal process does not specifically require a prisoner

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to identify offending prison staff in an inmate grievance/appeal, the failure to do so will not

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be seen as a per se failure to exhaust a claim against a defendant who was not named in

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the prison grievance/appeal process. Jones, 549 U.S. at 200-01. However, the grievance

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must "provide enough information . . . to allow prison officials to take appropriate

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responsive measures." Griffin, 557 F.3d at 1121.

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It is unclear whether Plaintiff exhausted the Grievance Procedures. Defendants

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have failed to satisfy their burden of demonstrating that Plaintiff did not exhaust the

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Grievance Procedures.

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C.

Plaintiff’s State Tort Claim is Not Sufficient PLRA Exhaustion

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Plaintiff alleges his state tort claims act filing is sufficient as PLRA exhaustion.

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Compliance with the California’s Tort Claims Act does not satisfy the federal

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exhaustion requirement set forth in section 1997e(a). Woodford v. Ngo, 126 S.Ct. 2378,

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2383 (2006); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002); Rumbles v.

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Hill, 182 F.3d 1064, 1069-70 (9th Cir. 1999) (overruled in part by Booth, 532 U.S. at 731).

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Plaintiff can not rely upon his state Tort Claims Act Claim in satisfaction of the

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federal exhaustion requirement set forth in section 1997e(a). See Sanchez v. Detention

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Officers of Kern County Sheriff’s Lerdo Jail, 2005 WL 2616278 at *2 (E.D. Cal. October 13,

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2005) (prisoner’s filing of a complaint with Kern County insufficient to demonstrate

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exhaustion of the remedies available within the institution).

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V.

CONCLUSIONS AND RECOMMENDATION

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Defendants have failed to carry their burden of establishing the Grievance

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Procedures and Plaintiff’s failure to exhaust thereunder pursuant to 42 U.S.C. § 1997e(a).

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Accordingly, for the reasons stated above the Court RECOMMENDS that

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Defendants’ Motion to Dismiss (ECF No. 37) be DENIED without prejudice. These findings

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and recommendation are submitted to the United States District Judge assigned to the
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case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days

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after being served with these findings and recommendation, any party may file written

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objections with the Court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge's Findings and Recommendation.” Any reply to

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the objections shall be served and filed within ten (10) days after service of the objections.

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The parties are advised that failure to file objections within the specified time may waive

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the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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The Clerk shall serve these Findings and Recommendation on Plaintiff at the

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following addresses:

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Richard Lawson
26627 Shakespeare Lane
Stevenson Ranch, CA 91381

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Richard Lawson
CDC# D30022
California Medical Facility
P.O. Box 2500
Vacaville, CA 95696-2500

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IT IS SO ORDERED.
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Dated:
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October 29, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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