Saffold v. Reynolds, et al.

Filing 48

ORDER GRANTING Defendants' 23 Motion to Dismiss signed by Magistrate Judge Dennis L. Beck on 3/27/2012. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TONY EUGENE SAFFOLD,

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CASE NO. 1:09-CV-02262-DLB PC

Plaintiff,

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ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

v.
(DOC. 23)

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T. REYNOLDS, et al.,

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Defendants.
/

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Order
I.

Background

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Plaintiff Tony Eugene Saffold (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is 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

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on Plaintiff’s first amended complaint, filed November 15, 2010, against Defendants T. Reynolds

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and J. Roberts for failure to protect in violation of the Eighth Amendment. Pending before the

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Court is Defendants’ motion to dismiss, filed October 5, 2011, pursuant to the unenumerated

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portion of Rule 12(b) of the Federal Rules of Civil Procedure, for Plaintiff’s failure to exhaust

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administrative remedies. Defs.’ Mot. Dismiss, Doc. 23. Plaintiff filed an opposition on October

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21, 2011. Docs. 24, 25, 26.1 On October 26, 2011, Defendants filed their reply. Doc. 27. The

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matter is submitted pursuant to Local Rule 230(l).

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Plaintiff was provided with notice of the requirements for opposing an unenumerated
Rule 12(b) motion on May 17, 2011. Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir.
2003); see Second Informational Order, Doc. 15.
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II.

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Summary Of Amended Complaint
At all times relevant to this action, Plaintiff was confined at Avenal State Prison. On

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September 25, 2008, Plaintiff asked Defendant Reynolds for his legal materials. He was denied.

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On his way to his cell, Plaintiff was attacked by another prisoner who socked him in the face

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while he had glasses on. The force of the blow caused Plaintiff to hit his head on the bottom of

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the stairs. Defendants Reynolds and Roberts watched as the prisoner beat Plaintiff until he was

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tired. Defendant Reynolds then tightly handcuffed Plaintiff. Plaintiff states a cognizable claim

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for violation of the Eighth Amendment against Defendants Reynolds and Roberts.2 Plaintiff

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requests as relief monetary damages and costs of suit, and a transfer to another prison.

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III.

Exhaustion Of Administrative Remedies

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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

Legal Standard

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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). Prisoners are required to exhaust the available

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

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v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required

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regardless of the relief sought by the prisoner and regardless of the relief offered by the process,

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Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all

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prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).

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

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defense under which defendants have the burden of raising and proving the absence of

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exhaustion. Jones, 549 U.S. at 216; Wyatt, 315 F.3d at 1119. The failure to exhaust nonjudicial

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administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b)

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motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int’l

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By separate order, the Court dismissed Plaintiff’s other claims for failure to state a
claim. Order, Doc. 12.
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Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). In

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deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look

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beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. If the Court concludes

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that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal

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without prejudice. Id.

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B.

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The CDCR has an administrative grievance system for prisoner complaints. Cal. Code

Discussion

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Regs. tit. 15, § 3084.1 (2010). The process is initiated by submitting a CDC Form 602. Id. §

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3084.2(a). Four levels of appeal are involved, including the informal level, first formal level,

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second formal level, and third formal level, also known as the “Director’s Level.” Id. § 3084.5.

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Appeals must be submitted within fifteen working days of the event being appealed, and the

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process is initiated by submission of the appeal to the informal level, or in some circumstances,

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the first formal level. Id. §§ 3084.5, 3084.6(c). In order to satisfy § 1997e(a), California state

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prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v.

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Ngo, 548 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always

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require pursuit of an appeal through the Director’s Level of Review. What is required to satisfy

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exhaustion is a fact specific inquiry, and may be dependent upon prison officials’ response to the

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appeal. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (improper reasons for screening

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inmate’s appeal is equitable exception to exhaustion); Nunez v. Duncan, 591 F.3d 1217, 1224

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(9th Cir. 2010) (listing examples of exceptions to exhaustion requirement from other circuits);

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Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005) (“[E]ntirely pointless exhaustion” not

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required).

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Defendants contend that Plaintiff failed to exhaust any grievances, because none of these

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appeals are contained in Plaintiff’s Inmate/Parolee Appeals Tracking System. Defs.’ P. & A.

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3:1-5. Defendants attach a declaration by D. Foston, Chief of the Office of Appeals branch for

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CDCR. D. Foston Decl. ¶ 2. Foston declares that Plaintiff did not exhaust any appeal regarding

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property or failure to protect from September 2008 to June of 2009, which includes the period

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when the alleged Eighth Amendment claim in this action occurred. Id. ¶ 7. This is a sufficient
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showing by Defendants to shift the burden to Plaintiff to demonstrate that he exhausted all

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available administrative remedies.

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Plaintiff contends that he filed a property appeal and staff misconduct complaint on

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September 26, 2008, by sending it to appeal coordinator N. Lopez. Pl.’s Mem. P. & A. 3, Doc.

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26. Plaintiff contends that his staff misconduct complaint was improperly screened out pursuant

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to Administrative Bulletin No. 05-03. Id. at 4. Plaintiff filed an inmate health care appeal on

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October 14, 2008. Id. Plaintiff attaches a copy of inmate grievance No. ASP-08-02641, the

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property grievance, as Exhibit J, and No. ASP-01-08-11087, his health care grievance, as Exhibit

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M.

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Grievance No. ASP-08-02641

On September 26, 2008, Plaintiff submitted inmate grievance No. ASP-08-02641, which

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complains of issues Plaintiff had with Defendant Reynolds regarding his legal materials. Pl.’s

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Opp’n, Ex. J at 40-51. Plaintiff contends that he became so upset that his legal material had been

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deprived that he “got into it” with another inmate. He informed the guards that he wanted to go

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to administrative segregation. He was told to go get his property. As he went back to get his

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property, an inmate hit Plaintiff in the face, and the force of the blow caused Plaintiff’s head to

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hit the bottom of the stairs.

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The staff complaint was treated as a property complaint, and any attempt by Plaintiff to

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file a separate staff complaint resulted in the complaint being screened out pursuant to

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Administrative Bulletin 05-03. Plaintiff complains that such screen-out was improper because

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Administrative Bulletin 05-03 is an underground regulation.3 Plaintiff attaches the California

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Office of Administrative Law’s 2008 OAL Determination No. 28, concerning Administrative

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Bulletin 05-03, as Exhibit L. The Office of Administrative Law found that AB 05-03 is a

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regulation that requires adoption pursuant to the California Administrative Procedure Act. It is

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The CDCR retired Administrative Bulletin 05-03, as updates to the Department
Operations Manual have rendered the bulletin no longer current. See Notice of Change to
Department Operations Manual No. 11-08,
http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/NCDOM/2011NCDOM/11-0
8/NCDOM%2011-08%20Letter%20-%20Inmate-Parolee%20Appeals.pdf.
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unclear what steps, if any, were taken afterwards. The Court need not address the matter further,

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however.

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Another requirement for exhaustion of administrative remedies is that the prisoner in his

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inmate grievance must describe the problem and the action requested. Griffin v. Arpaio, 557

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F.3d 1117, 1120 (9th Cir. 2009). In Grievance No. ASP-08-02641, Plaintiff describes his

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problems with Defendant Reynolds’s treatment of his property issue. Pl.’s Opp’n, Ex. J, at 47-

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48.4 However, Plaintiff makes no mention of Defendant Reynolds watching another prisoner

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beat Plaintiff and failing to act to prevent harm. This grievance does not put prison officials on

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notice as to the nature of the wrong for which redress is sought. Id.

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Accordingly, Plaintiff does not exhaust administrative remedies as to his Eighth
Amendment claim for failure to protect with Grievance No. ASP-08-02641.

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Grievance No. ASP-01-08-11087

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On October 14, 2008, Plaintiff submitted inmate grievance No. ASP-01-08-11087

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concerned Plaintiff’s alleged lack of medical care following the assault by another inmate. Pl.’s

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Opp’n, Ex. M at 69-71. Plaintiff briefly states that “On 9-25-08, I suffered a brutal attack by an

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unknown inmate while C/O T. Reynolds watched.” Plaintiff then complains of the medical

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treatment that he received, stating that his vision is impaired, he sees light flashes, and he has not

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received the tylenol that the doctor ordered. Id. at 69. In Plaintiff’s request for action, he seeks a

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follow-up check-up at no charge, a copy of his medical records regarding the incident, and that

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someone examine all of Plaintiff’s injuries to determine if they are healing properly. Id.

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As stated previously, in order to satisfy § 1997e(a), California state prisoners are required

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to use the administrative prison grievance process to exhaust their claims prior to filing suit.

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Ngo, 548 U.S. at 86. Pursuant to the CDCR regulations, Plaintiff is required to describe the

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problem and the action requested. Plaintiff described his problem as his medical treatment, and

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requested better follow-up treatment. Plaintiff’s grievance is insufficient to put prison officials

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on notice of his problem with Defendant Reynolds’s alleged failure to protect Plaintiff from

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Page numbers are from the court docket numbering.
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harm. Griffin, 557 F.3d at 1120. Addressing Plaintiff’s medical treatment is the purpose of

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Plaintiff’s inmate grievance, not Defendant Reynolds’s alleged failure to protect.

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Plaintiff also contends that in section H of the grievance, Plaintiff argued that “My appeal

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concerns the issue of how I was brutally attacked, while C/O T. Reynolds watched and did

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nothing to stop it.” Pl.’s Mem. P. & A. 7, Doc. 26. However, pursuant to CDCR’s

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administrative grievance process, Plaintiff was required to state the problem and the action

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requested at the informal level, or in some circumstances, at the first level of review. Cal. Code

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Regs. tit. 15, §§ 3084.5, 3084.6(c). Raising an issue for the first time in section H of the inmate

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grievance, which is Plaintiff’s dissatisfaction with the Second Level Response, is not in

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compliance with the requirements of the grievance process. Sapp, 623 F.3d at 825 (finding that

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officials declining to consider issue raised for the first time in a second level appeal to be proper).

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Accordingly, Plaintiff does not exhaust administrative remedies as to his Eighth Amendment

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claim for failure to protect with Grievance No. ASP-01-08-11087.

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3.

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Other Grievances

Plaintiff also attaches as exhibits grievance Nos. ASP-09-00565 and ASP-09-0054. Pl.’s

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Opp’n, Ex. N at 100 to 127. Plaintiff contends that these grievances concerned retaliation by

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Defendant Roberts for filing an appeal, a fabricated CDCR 128B chrono in Plaintiff’s file

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without notification, and that the CDCR 128B chrono was part of a cover-up by Defendants.

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Pl.’s Mem. P. & A. 9-10. However, these grievances are immaterial. The only claim remaining

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in this action is for failure to protect in violation of the Eighth Amendment. Plaintiff does not

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contend, nor does the Court find, that grievance Nos. ASP-09-00565 and ASP-09-0054 exhaust

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administrative remedies for his Eighth Amendment claim.

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Plaintiff did not exhaust administrative remedies. The proper remedy is dismissal

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without prejudice. Wyatt, 315 F.3d at 1119-20.

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IV.

Conclusion And Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Defendants’ motion to dismiss, filed October 5, 2011, is GRANTED in full;

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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);

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All other pending motions are denied as moot; and

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The Clerk of the Court is directed to close this action.

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IT IS SO ORDERED.
Dated:
3b142a

March 27, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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