Good et al v. California Dept. of Corrections et al

Filing 53

ORDER GRANTING 46 Motion to Dismiss signed by Magistrate Judge Jennifer L. Thurston on 9/29/2011. CASE CLOSED. (Sant Agata, S)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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JOHN GOOD,

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Plaintiff,
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vs.
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CALIFORNIA DEPARTMENT OF
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CORRECTIONS, et al.,
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Defendants.
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_______________________________________ )

Case No. 1:09-cv-01791-JLT (PC)
ORDER GRANTING MOTION TO DISMISS
(Doc. 46)

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the Court is Defendant’s July 15, 2011 motion to dismiss that alleges

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that Plaintiff failed to exhaust administrative remedies. (Doc. 45) Plaintiff has filed an opposition to the

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motion. After careful consideration of the submitted papers and the entire record in this case, the Court

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GRANTS the motion to dismiss.

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I.

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Background
In this case, the Court has found cognizable two causes of action. (Doc. 32 at 5, 7) In one,

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Plaintiff alleges that Defendants Trayham and Kelly deprived him of regular showers. Id at 5. In the

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other, Plaintiff alleges that Defendants Trayham, Kelly and Remdez threatened him if he continued to

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file 602 inmate grievances. Id. at 7. In this regard, Plaintiff alleges that on April 23, 2009, Defendant

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Remdez “said if I 602 anything else there would be hell to pay. (Doc. 31 at 7) He alleges that “On May

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12th [2009] I was called to program office. Sgt. Kelly threw my 602 Inmate grievance in a shredder and

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told me not to file another one for Health and Safety conditions.” Id. Finally, on May 20, 2009, Plaintiff

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alleges that, Defendant Trayham, either directly or indirectly, told Plaintiff “to drop my complaining

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about living conditions or suffer reprisals.” Id. at 8. Plaintiff remained at CCI until June 6, 2009 when

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he was transferred to another state prison. Id.

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Defendants assert that Plaintiff failed to file a grievance related to the two issues raised in his

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complaint. (Doc. 46) Defendants argue that Plaintiff filed only two appeals in 2008 and 2009 and both

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concerned his medical care and delays in receiving medication. Id. at 5. Along with their motion,

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Defendants provide the declaration of K. Sampson, the Litigation Coordinator for the California

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Correctional Institute, in Tehachapi, California, where Plaintiff is housed. (Doc. 46-1.) Sampson attests

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that CCI records all appeals filed by inmates and also maintains a database of all appeals that were

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screened out. Id. at 1. Sampson reports that Sampson conducted a search of these records and found

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that Plaintiff filed two appeals during 2008 and 2009. Id. at 2. Both of these appeals related to concerns

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over the medical care provided to Plaintiff and his complaints about not receiving his medications in a

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timely fashion. Id. Records attached to Sampson’s declaration detail that Plaintiff filed three appeals on

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January 21, 2009, but because they were triplicates, two were screened out. (Doc. 46-3)

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Sampson declares that from July 1, 2009 through July 1, 2009, CCI received 21 appeals that were

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received with 19 being assigned to a first level review and 3 to a second level review. (Doc. 46-1)

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Thirty-eight appeals were screened out. Id. All of these appeals originated from inmates housed with

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Plaintiff in Housing Unit 1, Level 3 yard. Id. at 3.

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Defendants also provide the declaration of D. Foston, who is the Chief of the Office of Appeals

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for the CDCR. (Doc. 46-3.) Foston declares, that Foston conducted a thorough search of the appeal

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files maintained by the Office of Appeals. Id. at 2. Foston reports that the search yielded no third level

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appeal filed by Plaintiff from 2008 through September 2011, related to the issues raised in this litigation.

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Id.

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Plaintiff argues that his appeal, detailed on Exhibit 2 to Defendants’ motion as Log Number CCI-

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0-09-00100 and received on January 21, 2009, raised issues related to his complaints over being

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deprived of showers and other hygiene issues and his concerns over staff conduct. (Doc. 48) Plaintiff

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does not provide a copy of this grievances but has attached numerous documents to his First Amended

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Complaint which detail the content of Plaintiff’s 602 grievances. (Doc. 31 at 9-51)
On one sheet, Plaintiff details all of the grievances that he asserts he submitted but were not

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logged by CCI. (Doc. 31 at 51) The complaints relate to being forced to eat from makeshift tables made

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from trash cans, the condition of the inmate’s mattresses, the time limits placed on using the law library,

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inadequate supplies and missing property after a cell search. Id. Only one grievance, filed on April 9,

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2009, described as “Staff Misconduct” is arguably related to the issues of this lawsuit. Id. However,

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review of the other documents filed by Plaintiff reveals that this complaint is not related to this litigation

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but, instead, to claims that staff members were throwing away Plaintiff’s grievances. Id. at 10, 11, 12,18.

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On April 16, 2009 and April 20, 2009, Plaintiff filed an “Inmate Request for Interview.” (Doc.

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31 at 10, 11, 12) In each, respectively, Plaintiff listed his earlier grievances that he claimed that he filed

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and set forth descriptions of each earlier grievance including “being fed off unsanitary trash cans as

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makeshift tables,” “health & safety violations” and “health & safety violations and mattresses that arent

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[sic] all there or badly contaminated.” Id. Plaintiff did not assert that any of the grievances complain

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about a lack of regular showers or that he was threatened by a staff member.

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On May 6, 2009, Plaintiff filed another “Inmate Request for Interview.” (Doc. 31 at 13-14) In

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this request, Plaintiff decried the 602 process and outlined his previous grievances relating to “unsanitary

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conditions,” “Health & Safety violations and unsanitary partial mattress.” Id. at 14. He reported that on

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that same day, he was submitting a new 602 regarding “602 time limits/staff misconduct [regarding[ the

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602 not getting logged.” Id. Again, he did not claim that any of the grievances were about the lack of

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regular showers or that he was threatened by a staff member.

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On May 14, 2009, Plaintiff wrote a letter to the Appeals Coordinator, K. Sampson in which

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Plaintiff further described what he believed was staff members throwing away his grievances. (Doc. 31

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at 49-50) In the letter, he reported to Sampson that he submitted two 602s on May 13, 2009; one which

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complained about the failure to provide regular programs and yard time and the other which complained

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about the quality of the inmate’s mattresses. Id. at 49. In conclusion to the letter, Plaintiff emphasized

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that he had to complain to outside agencies about the conditions at CCI which included complaints about

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“being in a total lockdown inviorment, no shower, no yard, no programs, no church, I was being feed of

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unsanitary trash cans used as plumber waste can/spit patoon/trash. I sleep on a partial mattress thats

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lump/smells of urin & shit and it aint a whole mattress.” Id. at 50. Thus, this is the first report in which

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Plaintiff mentions the issue of the irregular shower schedule but does not contend that he filed any 602

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inmate grievances related thereto.

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Though there is no evidence that Plaintiff complained about the lack of regular showers in any

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602 submission, it is clear that he complained to others outside of CCI on this topic. For example, on or

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about April 26, 2009, Plaintiff wrote to the Office of Internal Affairs in which he complained about the

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conditions at CCI and the failure of staff members to properly process 602s. (Doc. 31 at 24-26).

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Plaintiff reported that he filed four previous grievances on these topics; the first in December 2008, the

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second in late December 2008, the third was on or around February 3, 2009 and the fourth was on March

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18, 2009. Id. at 24. Plaintiff asserted that each of these grievances related to “unsanitary conditions

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related to food health & safety violation comitted by staff” and for staff members throwing away his

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602s. Id.

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In the letter to IA, Plaintiff requested assistance with the conditions including being forced to eat

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off makeshift tables made from trash cans, “numorous Health & Safety Issues” including being forced to

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use unsanitary food trays, being permitted to shower only every 5 to 8 days, inadequate and unsanitary

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mattresses and staff members “spraying pepr spray for complaining of mattresses that are not sleep-able

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and the Sgt who picks up the 602 to log them but instead destroys the 602 if it deals with Health &

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Safety violations.” (Doc. 31 at 25)

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to IA, he does not assert that he submitted a 602 grievance related to this topic or that any staff member

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threatened him about filing 602s.

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Once again, though Plaintiff mentions the lack of regular showers

Again, on April 29, 2009, the Office of the Omsbudsman responded to a complaint lodged with

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that office by Plaintiff in which he complained that “food is being served in an unsanitary manner, . . .

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the mattresses are unsanitary, . . . [Plaintiff had] medical concerns and . . . [Plaintiff was] unable to get to

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the law library. (Doc. 31 at 9) Plaintiff does not mention a lack of showers or that any staff member

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threatened him in an attempt to dissuade him from submitting 602s.

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On May 27, 2009, the Inmate Appeals Branch responded to a complaint Plaintiff made to that

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office. (Doc. 31 at 18) In this letter, the IAB writes, “This is in response to your correspondence

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received by the Inmate Appeals Branch (IAB) on May 7, 2009, stating that you have submitted numerous

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appeals regarding unsanitary trashcans being used as make shift tables to serve food; mattresses are only

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1/16th of a mattress or are rust covered, moldy, or smell of urine, showers every five to eight days on

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good days or ten to fifteen days apart on lock downs. You state that institution staff are throwing away

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your appeals.” This is the only complaint to an outside agency in which he claims that he submitted a

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602 related to lack of showers. Notably, again, he does not mention that any staff member threatened

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him as described in the complaint.

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III.

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EXHAUSTION REQUIREMENT
Section 1997e(a) of the Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall

be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by

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a prisoner confined in any jail, or other correctional facility until such administrative remedies as are

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available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are thus required to exhaust all available

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administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v.

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Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion of administrative remedies is mandatory

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regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and applies

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to all prisoner suits relating to prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002).

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In order to properly exhaust administrative remedies, an inmate must comply with the prison’s

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deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 93 (2006). In California,

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the Department of Corrections and Rehabilitation has established an administrative grievance system for

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prisoner complaints. See Cal. Code. Regs, tit. 15 § 3084.1 (West 2009). Prisoners may appeal any

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departmental decision, action, condition or policy perceived by those individuals as adversely affecting

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their welfare. Id. at § 3084.1(a). The process is initiated by a prisoner submitting a CDCR Form 602,

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which is also known as an “inmate appeal.” Id. at § 3084.2(a). The inmate appeal typically proceeds

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through four levels of review: an informal level, the first formal level, the second formal level, and the

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third formal level, also known as the “Director’s Level.” Id. at § 3084.5. A final decision from the

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Director’s Level of review typically satisfies the exhaustion requirement under § 1997e(a). See, e.g.,

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Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D. Cal. 1997).

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The exhaustion requirement is not jurisdictional, but rather creates an affirmative defense that a
defendant may raise in a non-enumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1117-19

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(9th Cir. 2003). The defendant bears the burden of raising and proving the absence of exhaustion. Id. at

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1119. In deciding the motion, “the court may look beyond the pleadings and decide disputed issues of

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fact.” Id. If the court concludes that the prisoner has not exhausted all of his available administrative

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remedies, “the proper remedy is dismissal of the claim without prejudice.” Id. at 1120. If a complaint

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contains exhausted and unexhausted claims, “the court proceeds with the good and leaves the bad.”

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Jones, 549 U.S. at 221.

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IV.

DISCUSSION

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A.

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The Court first determines whether Plaintiff submitted a grievance regarding the lack of regular

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showers at CCI and that staff members threatened him if he filed any 602 grievances. After a review of

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Plaintiff’s records detailing his own 602 submissions, it appears Plaintiff did not submit a 602 grievance

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related either to the failure to receive regular showers or the threats by CCI staff. As noted above,

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Plaintiff submitted his own records with his First Amended Complaint that detail that none of his 602

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grievances related to these issues. (Doc. 31 at 10, 11, 12, 31, 51) Instead, all concerned Plaintiff’s

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protests about the cleanliness of the food trays, the use of trash cans as makeshift tables, the quality and

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condition of his mattress and library access. Id. at 51. Though it is clear that Plaintiff complained about

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the lack of showers outside of the 602 process to the Office of Internal Affairs and the Inmate Appeals

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Branch, the fact remains that even he admits that he did not grieve the failure to provide regular showers.

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Woodford, 126 S. Ct. at 2387 (The PLRA requires “proper exhaustion” of available administrative

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remedies.)

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Exhaustion

On the other hand, the issue related to staff threats made to dissuade him from submitting

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additional 602 grievances, is more troubling. However, despite the alleged threats made on April 23,

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2009 and May 12, 2009, Plaintiff continued to regularly file 602 grievances after the threats but none

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mentioned that staff members had threatened him. (Doc. 31 at 51) There is no evidence that Plaintiff

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filed a grievance after the threats made on May 18, 2009 but Plaintiff does not allege that this was due to

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any threat. Id at 8. To the contrary, Plaintiff contends that the 602 grievance he submitted on January

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11, 2009 including the two issues raised in this litigation. (Doc. 48 at 1) However, not only does this

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contention contradict his own documents (Doc. 31 at 10, 11, 12, 31, 51), it is inconsistent with

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Defendant’s evidence and it was filed before the alleged threats occurred. (Doc. 31 at 7-8) Accordingly,

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the Court finds that Plaintiff has not exhausted a grievance regarding the lack of regular showers or the

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threats by prison staff.

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B.

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Because Plaintiff did not exhaust his administrative remedies, the Court must now determine

Exceptions to Exhaustion

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whether Plaintiff should be excused from the exhaustion requirement. Plaintiff appears to argue that he

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should be excused from his failure to exhaust administrative remedies because “Defendant threatened

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[him], causing [him] to fear filing any grievance[s] . . . .” (Doc. 42 at 1.)

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The Ninth Circuit has held that an inmate may be excused from the exhaustion requirement if

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circumstances rendered administrative remedies “effectively unavailable.” Sapp v. Kimbrell, 623 F.3d

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813, 822 (9th Cir. 2010) (citing Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)). Although the

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Ninth Circuit has never explicitly ruled on whether threats by prison officials may render administrative

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remedies unavailable such that an inmate need not exhaust them, the Ninth Circuit has noted that other

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circuits have. See Sapp, 623 F.3d at 823. For example, in Turner v. Burnside, 541 F.3d 1077 (11th Cir.

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2008) the Eleventh Circuit acknowledged that a prison official’s threat of retaliation against an inmate

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for filing grievances could render administrative remedies unavailable where: (1) the threat actually did

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deter the inmate from filing a grievance; and (2) the threat is one that would have deterred a reasonable

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inmate of ordinary firmness from filing a grievance. Id. at 1085.

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Using the Eleventh Circuit’s framework in Turner as guidance, the Court finds that Plaintiff’s

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administrative remedies were not rendered unavailable. Considering Turner’s second factor first, a

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reasonable inmate of ordinary firmness would not have been deterred from filing a grievance under the

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circumstances faced by Plaintiff. Plaintiff alleges that he was threatened three times about submitting

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addition 602 grievances. However, despite this, Plaintiff regularly submitted 602 grievances but failed

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to raise the issue related to denial of showers or staff threats. (Doc. 51)

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Thus, it seems clear that Plaintiff was not cowed by any threat and freely exercised his right to

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submit grievances. Moreover, even if he was afraid to file any further grievances after the May 20, 2009

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threat and while still housed at CCI, there is no explanation for his failure to file a grievance once he

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arrived at his new housing at SATF on June 6, 2009. (Doc. 31 at 8) In any event, as noted above,

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Plaintiff does not contend that he failed to submit a grievance out of fear of retaliation. Instead, he

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claims that his January 21, 2009, grievance covered these topics. (Doc. 48 at 1) As discussed above, the

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Court disagrees.

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This leads the Court back to Turner’s first factor. The record clearly demonstrates that Plaintiff

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was not actually deterred from lodging a grievance on the relevant topics. Thus, against this backdrop,

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Plaintiff’s bald assertion that the matter is not barred by his failure to exhaust his administrative

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remedies as required by the PLRA, is not persuasive. Accordingly, the Court concludes that Defendant’s

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threats did not impede or preclude Plaintiff from filing a grievance and exhausting his administrative

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remedies. Because administrative remedies were not rendered “unavailable,” Plaintiff should not be

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excused from his failure to exhaust and this action should be dismissed.

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C.

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As the Ninth Circuit has previously explained, “If the district court concludes that the prisoner

Dismissal Without Prejudice

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has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice.”

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Wyatt, 315 F.3d at 1120.

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V.

CONCLUSION

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Accordingly, the Court ORDERS:

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Defendant’s July 15, 2011 motion to dismiss (Doc. 46) is GRANTED; and

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This action is DISMISSED WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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Dated: September 29, 2011
9j7khi

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/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE