West v. Federal Bureau of Prisons et al

Filing 75

FINDINGS And RECOMMENDATIONS Regarding Defendant's Motion To Dismiss For Failure To Exhaust (Document 66 ), signed by Magistrate Judge Dennis L. Beck on 4/2/2013. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 5/6/2013. (Fahrney, E)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11

GERALD A. WEST,

12

Plaintiff,

13
14

vs.
FEDERAL BUREAU OF PRISONS, et al.,

15

Defendants.

)
)
)
)
)
)
)
)
)
)

1:09cv01277 LJO DLB PC
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANT’S MOTION TO
DISMISS FOR FAILURE TO EXHAUST
(Document 66)

16
17
18

I.

BACKGROUND
Plaintiff Gerald A. West (“Plaintiff”), a federal prisoner proceeding pro se and in forma

19

pauperis, filed this civil action on July 22, 2009, pursuant to Bivens v. Six Unknown Named

20

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Pursuant to the Court’s April 20,

21
22

2012, order, the action is proceeding on Plaintiff’s Fourth Amended Complaint, which states a
claim for failure to protect in violation of the Eighth Amendment against Defendant Michael

23

McNease. All other claims and Defendants have been dismissed.
24
25
26
27
28
1

1
2
3

On September 13, 2012, Defendant filed this motion to dismiss for failure to exhaust
administrative remedies.1 Plaintiff opposed the motion on October 29, 2012, and Defendant filed
a reply on November 7, 2012.

4
5

Plaintiff’s claims arise from events occurring in 2007, while he was incarcerated at
United States Penitentiary- Atwater (“USP-Atwater”). Plaintiff alleges that on October 26, 2007,

6
7
8
9

he arrived at USP-Atwater with inmate Morton. On October 27, 2007, inmate Morton was
attacked and stabbed by a group on inmates. While in the infirmary, inmate Morton told
Defendant that Plaintiff was the intended target of the attack. Plaintiff alleges that Defendant

10

ignored the information and told inmate Morton that his shift was over and he was going home.

11

After a one hour lockdown was lifted, Plaintiff was attacked by the same group of inmates that

12

attacked inmate Morton.

13

II.

14
15
16
17
18

LEGAL STANDARD
Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with

respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the
available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127

19

S.Ct. 910 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is
20
21
22
23
24

required regardless of the relief sought by the prisoner and regardless of the relief offered by the
process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion
requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122
S.Ct. 983 (2002).

25
26
27
28

1

Plaintiff was provided with notice of the requirements for opposing a motion to dismiss for failure to exhaust in
an order filed on October 3, 2012. Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). Error! Main
Document Only.
2

1
2
3
4

The failure to exhaust in compliance with section 1997e(a) is an affirmative defense
under which the defendants have the burden of raising and proving the absence of exhaustion.
Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to
exhaust is subject to an unenumerated Rule 12(b) motion, and in resolving the motion, the Court

5

may look beyond the pleadings and decide disputed issues of fact. Stratton v. Buck, 697 F.3d
6
7
8
9

1004, 1008 (9th Cir. 2012); Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010); Wyatt, 315 F.3d
at 1119-20. If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is
dismissal without prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76

10

(9th Cir. 2005).

11

III.

12

THE BOP’S ADMINISTRATIVE REMEDY PROCESS
As set forth in Defendant’s motion and the Declaration of Jennifer Vickers, the Federal

13

Bureau of Prisons (BOP) provides a grievance procedure, known as the Administrative Remedy

14

Program, which allows inmates to seek formal review of any issue relating to their confinement

15

at BOP-run institutions. 28 C.F.R. § 542.10 (2012). The first step in the process requires the

16
17
18

inmate to present the grievance issue to staff for informal resolution, a step which may be waived
by the Warden or the institution’s Administrative Remedy Coordinator. 28 C.F.R. § 542.13.
The next step is the submission of a formal written administrative remedy request

19

(request) on a BP-9 form to the institutional-level staff person designated to receive requests. 28
20
21
22
23

C.F.R. § 542.14. An exception exists at this step for sensitive issues, and an inmate who
reasonably believes his issue is sensitive and his safety or well-being would be placed in danger
if the request became known at the institution may submit the request directly to the Regional

24

Director. 28 C.F.R. § 542.14(d)(1) (quotation marks omitted). If the request is not accepted, the

25

inmate is to be notified in writing without return of the request. Id. (quotation marks omitted). If

26

a remedy has been rejected, it may indicate that the inmate did not follow the appropriate

27

procedures and it was returned in accordance with 28 C.F.R. § 542.17(a).

28
3

1
2
3
4
5

If an inmate is not satisfied with the Warden’s response to his request at the first formal
level of review, the inmate may submit the request to the Regional Director on a BP-10 form
within twenty days of the Warden’s response. 28 C.F.R. § 542.15. If not satisfied with the
Regional Director’s response, the inmate may appeal to the final level of review by submitting a
BP-11 form appeal to the General Counsel within thirty days of the Regional Director’s

6
7
8

response. Id.
IV.

DISCUSSION
Defendant contends that Plaintiff failed to exhaust his claim at all three administrative

9
10

levels prior to filing this action. Indeed, in his Fourth Amended Complaint, Plaintiff admitted

11

that he had not completed the appeals process because prison officials refused to “provide [him]

12

with documents and/or did not respond to informal resolutions, also threatened plaintiff with

13

physical harm.” Fourth Am. Compl. 2.2

14
15
16
17

In his opposition, Plaintiff explains that after not receiving responses at the institutional
level, he filed a BP-9 indicating that he had not received any responses and was therefore
prevented from filing a BP-9. The form, dated November 13, 2007, also complains that staff
would not talk to him about the stabbing incident on October 27, 2007. Pl.’s Decl. Ex. B.

18
19

When this wasn’t answered, Plaintiff states that he filed a BP-10 to the Regional Director,
dated January 1, 2008. Pl.’s Decl. Ex. A. The appeal references three BP-9s, which Plaintiff

20
21
22
23
24

states have not been answered in the required time limit. The BP-10 states that one BP-9 was
“for negligent and safety concerns dealing with a[n] assault issue that happen on Oct. 27, 2007.”
This form, however, was sent to the Central Office rather than the Regional Office. Pl.’s Decl.
Ex. A.
The Central Office rejected the appeal on January 15, 2008, because he submitted the

25
26

appeal to the wrong level. The rejection explained that Plaintiff needed to file a BP-9 or a BP-10

27
2

28

Plaintiff’s allegations of threatened physical harm appeared for the first time in his Fourth Amended Complaint.
The prior complaints only indicated that the BOP refused to respond, and that he had filed a Tort Claim.
4

1

prior to filing with the Central Office. Plaintiff was also informed that he needed a separate

2

appeal form for each issue. Pl.’s Decl. Ex. M.

3
4
5

Plaintiff then “started the process over and explained that he was being prevented from
using the Administrative Remedy System.” Pl.’s Opp’n 3. On February 1, 2008, Plaintiff filed a
BP-11 with the Central Office. Pl.’s Decl. Ex. D. In the appeal, Plaintiff stated that his BP-9s

6
7
8
9
10

were not being answered, and that staff were instructed not to give him more forms. This appeal
was rejected on February 13, 2008, because it was filed at the wrong level. The rejection
explained that Plaintiff first needed to file a BP-9 at the institutional level. Pl.’s Decl. Ex. E.
Finally, Plaintiff states that as a “last attempt before he was transferred,” he attempted to

11

file a sensitive BP-10 on April 3, 2008. The appeal asked that Plaintiff be assigned to a new unit

12

team because his current team was unprofessional and biased. He states that in retaliation for his

13

complaints, he has been isolated from his unit team and has not talked to them since February

14

2008. Pl.’s Decl. Ex. E. The appeal was rejected on April 3, 2008, because (1) it was not

15

deemed sensitive; and (2) Plaintiff had failed to file an informal resolution prior to filing. Pl.’s

16
17
18

Decl. Ex. H.
Plaintiff has failed to exhaust his administrative remedies for numerous reasons. First, as
Defendant points out in his motion, his appeal forms do not sufficiently explain the issue in this

19

action. Plaintiff alleges that Defendant McNease had information that Plaintiff was not safe, but
20
21
22
23

failed to act on it. In his November 13, 2007, BP-9, he raises “staff negligence” and access to his
central files and medical records. He states that a staff member will not talk to him about a
“stabbing incident that happen[ed] on October 27, 2007.” Pl.’s Decl. Ex. B. In the January 1,

24

2008, BP-10, he mentions medical treatment, access to medical records and the October 27, 2007

25

event: “negligent and safety concerns dealing with an assault issue that happen[ed] on October

26

27, 07.” Pl.’s Decl. Ex. A. In the BP-11, however, he only complained of prior appeals not

27

being answered.

28
5

1
2
3
4

Therefore, Plaintiff failed to provide sufficient factual specificity, at each level, to alert
the prison of the nature of the wrong. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009)
(adopting standard set in Strong v. David, 297 F.3d 646 (7th Cir. 2002)). Plaintiff didn’t even
mention the Defendant by name, nor did he state that anyone had information about potential

5

harm. The BP-11 made no mention of the incident.
6
7
8
9

Second, Plaintiff did not correctly pursue his administrative remedies. Plaintiff’s January
1, 2008, BP-10 should have been sent to the Regional Office. Instead, it was sent to the Central
Office and was therefore rejected in part as filed at the wrong level. Pl.’s Decl. Ex. A, M.

10

Plaintiff also failed to follow the instructions in the January 15, 2008, rejection letter. Instead of

11

filing at the institutional level, he sent another appeal directly to the Central Office. Pl.’s Decl.

12

Ex. D, M. The PLRA is not satisfied by a procedurally defective appeal. Woodford v. Ngo, 548

13

U.S. 81, 83-84 (2006).

14

Next, insofar as Plaintiff relies on the alleged failure to the prison to provide appeals

15

forms, his exhibits undermine his assertion and credibility. In his opposition, Plaintiff states,

16

“During the month of November and December 2007, [he] was not given any grievance forms,”

17
18
19

and “there were no grievance forms filed during this period because of prison staff interference.”
Pl.’s Opp’n 6. Similarly, Plaintiff states in his declaration that he did not start filing appeals until
January 2008. Pl.’s Decl. ¶¶ 6, 7. In line with these statements, Defendant states that Plaintiff’s

20
21
22
23

first recorded filing referencing the October 27, 2007, incident was his January 1, 2008, BP-10.
Reply 3.
Interestingly, Plaintiff’s declaration now includes two appeals that were allegedly filed in

24

November 2007. Pl.’s Decl. Ex. B, C. This means one of two things- either Plaintiff truthfully

25

stated that he wasn’t given forms during this time period and has now created the forms to

26
27
28
6

1
2

support his contentions3, or his statement that the prison staff refused to give him grievance
forms is false.

3
4

Finally, Plaintiff’s filings also undermine his vague claim of physical harm. Defendant
states that Plaintiff filed 15 administrative grievances between the time of the incident on

5

October 27, 2007, and the filing of this action on July 22, 2009. Vickers Decl. ¶ 8. Moreover, as
6
7
8
9
10

noted above, at least two appeals were filed during the period Plaintiff alleges threats. Defendant
argues, and the Court agrees, that these 15 filings undermine his allegation of threats of physical
harm.
V.

Accordingly, based on the above, it is HEREBY RECOMMENDED that Defendant’s

11
12

FINDINGS AND RECOMMENDATIONS

motion to dismiss be GRANTED and that this action be DISMISSED.

13

These Findings and Recommendations will be submitted to the United States District

14

Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

15

thirty (30) after being served with these Findings and Recommendations, any party may file

16

written objections with the Court. Such a document should be captioned “Objections to

17
18
19

Magistrate Judge’s Findings and Recommendations.” Replies to the Objections shall be served
and filed within ten (10) court days (plus three days if served by mail) after service of the
objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §

20
21
22
23

636 (b)(1)(c). The parties are advised that failure to file objections within the specified time may
waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th
Cir. 1991).

24

IT IS SO ORDERED.
25

Dated:

26

/s/ Dennis

L. Beck

UNITED STATES MAGISTRATE JUDGE

27
28

April 2, 2013

DEAC_Signature-END:

3

There are no stamps on these documents to indicate that they were received at any level.
7

1

3b142a

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8