Yates v. King et al

Filing 73

ORDER GRANTING Defendants' 45 Motion to Dismiss for Failure to Exhaust Administrative Remedies; ORDER DENYING Plaintiff's 65 Motion to be Excused from the Exhaustion Requirement; ORDER STRIKING Plaintiff's 69 Motion for Opposition of Defendants' Motion to Dismiss signed by Magistrate Judge Sandra M. Snyder on 5/27/2011. 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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THEODORE BRITTON YATES,

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Plaintiff,

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v.

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C KING,

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CASE NO. 1:10-cv-00530-SMS PC
ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES
(ECF Nos. 45, 57, 59)

Defendant.

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ORDER DENYING PLAINTIFF’S MOTION TO
BE EXCUSED FROM THE EXHAUSTION
REQUIREMENT

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(ECF No. 65)

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ORDER STRIKING PLAINTIFF’S MOTION
FOR OPPOSITION OF DEFENDANT’S
MOTION TO DISMISS

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/ (ECF No. 69)

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Plaintiff Theodore Britton Yates (“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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Plaintiff’s complaint, filed March 25, 2010, against Defendant C. King for deliberate indifference

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to a serious threat to Plaintiff’s safety in violation of the Eighth Amendment. (ECF No. 1.)

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Defendant filed a motion to dismiss for failure to exhaust administrative remedies on February 22,

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2011. (ECF No. 45.) On April 15, 2011, Plaintiff filed a motion in opposition to the motion to

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dismiss, declaration in support of the motion, and opposition.1 (ECF Nos. 57, 58, 59.) On May 4,

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Plaintiff was notified of the requirements for opposing a motion to dismiss for failure to exhaust by order
issued December 14, 2010. (ECF No. 39.)

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2011, Plaintiff filed a motion to exclude him from the exhaustion requirement. (ECF No. 65.) On

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May 13, 2011, Plaintiff filed a motion in opposition of Defendant’s motion to dismiss. (ECF No.

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66.)

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Initially, the Local Rules provide for a motion, an opposition, and a reply. Neither the Local

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Rules nor the Federal Rules provide the right to file multiple motions in opposition to Defendant’s

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motion to dismiss, and the Court neither requested one nor granted a request on the behalf of

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Plaintiff to file one. Accordingly, Plaintiff’s motion in opposition, filed May 13, 2011, shall be

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stricken from the record.

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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.

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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). Four levels of appeal are involved, including the informal level, first formal level, second

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formal level, and third formal level, also known as the “Director’s Level.” Cal. Code Regs. tit 15,

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§ 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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Defendant brings this unenumerated Rule 12(b) motion for failure to exhaust administrative

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remedies as required by 42 U.S.C. § 1997e(a). Plaintiff’s complaint alleges that in February 2010,

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he was assaulted by other inmates as Defendant King walked by, ignoring the assault. (Compl. 3-4,

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ECF No. 1.) Plaintiff did not file an inmate appeal regarding any incident that occurred in February

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2010. (Motion to Dismiss 4, ECF No. 45.) Nine months after Plaintiff filed his complaint in this

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action, he submitted an inmate appeal which was dated October 31, 2010, alleging that Defendant

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King called him to the gym and had an inmate hit him on May 24, 2010, in retaliation for Plaintiff

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filing this action. (Id. at 7.) In his appeal Plaintiff states “[a]fter speaking with psychiatrist Dr.

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Boars and 2nd watch Sargents [sic] I decided to file a case against Warden Gonzales and Officer

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King and I did so. (Id. at 9.) The appeal was screened out at the first level based on Plaintiff not

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filing within the time frame set forth for appeals. (Id. at 5.) Plaintiff admits in his amended

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complaint that he did not exhaust administrative remedies prior to filing his complaint.

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Plaintiff filed three documents in opposition to Defendant’s motion to dismiss. In his motion

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of opposition, states two reasons for his failure to exhaust administrative remedies. First, there was

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not enough time for him to exhaust administrative remedies as he was paroled on May 26, 2010.

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Second, he was told by an officer at CCI that he would be beat up if he filed a grievance against

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Officer King. This is the reason he mentioned retaliation in his complaint and he would have gotten

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hurt because there is a “greenwall.” (Motion of Opp. 2, ECF No. 57.) Plaintiff filed a document

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entitled “Motion in Support of my Motion of Oppisition, [sic] and What I Think Inmate Mathew
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Innerbichler Would Say in my Defense.” (ECF No. 58.) This document is clearly speculative and

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will not be considered for purposes of this motion. Plaintiff also filed a document entitled “Motion

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for Reason Plaintiff Could Not Exhaust Administrative Remedies and Defendants [sic] Fed. R. Civ.

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Proc. 12(b) Motion to Dismiss,” stating that he did not exhaust administrative remedies because he

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would have been beaten up by Correctional Officers. (ECF No. 59.)

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Plaintiff assertion that he was unable to exhaust administrative remedies because he was

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paroled on May 26, 2010, is clearly without merit as to the claims alleged in this action. The

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incident alleged occurred in February 2010, and the regulations require that the inmate “must submit

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the appeal within 15 working days of the event . . . being appealed.” Cal. Code Regs. tit 15, §

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3084.6(c). Plaintiff paroled in May, more than two months later, and there was ample opportunity

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for him to file an inmate appeal within the fifteen working days as required by the regulations.

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Plaintiff filed an appeal October 31, 2010, alleging an incident that occurred between himself and

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Defendant King on May 24, 2010, which was two days prior to his parole date. Therefore Plaintiff’s

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arguments set forth in this declaration must relate to that incident.

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Plaintiff states that he was told by an officer that if he filed an inmate appeal he would be

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beat up. Where circumstances render exhaustion of remedies unavailable exhaustion is not required.

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Sapp. 623 F.3d at 822; Nunez v. Duncan, 591 F.3d 1217, 1225 (9th Cir. 2010.) An exception exists

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where the inmate took reasonable and appropriate steps to exhaust his administrative remedies and

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was unable to exhaust through no fault of his own. Nunez, 591 F.3d at 1224. Plaintiff admits that

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he made no effort to file an inmate appeal regarding this incident and did not decide to file this action

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until after speaking with his psychologist and a second watch sergeant.

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A fear of retaliation is not an exception to the exhaustion requirement. See, e.g. Garcia v.

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Baca, 2008 WL 5119156, at * 4, No. CV-06-4837-FMC (C.D. Cal. Dec. 2, 2008); Ketchens v.

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Rocha, 2006 WL 1652658, at * 2, No. 1:05-cv-0131-OWW-LJO (E.D. Cal. June 14, 2006.);

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Williams v. Lewis, 2005 WL 1829698, at * 5, No. CVF99-6523-OWW-LJO (July 26, 2005.)

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Plaintiff’s claim that some unidentified officer at some unidentified time made a statement that he

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would be beat up if he filed an appeal does not demonstrate that the grievance process was

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unavailable to Plaintiff for the February 2010 incident alleged in this action. Additionally, Plaintiff’s
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allegations that he was threatened appear to have occurred after the May incident. Such statements

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made months after Plaintiff would have been required to file an inmate appeal would not excuse his

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failure to exhaust the incident at issue in this action. Plaintiff has not demonstrated that he was

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precluded from filing an inmate appeal. Since Plaintiff did not take reasonable and appropriate steps

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to exhaust his administrative remedies, Defendant’s motion to dismiss shall be granted.

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In Plaintiff’s motion filed May 4, 2010, he requests that he be excused from the exhaustion

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requirement because he was subject to retaliation after he filed this suit. Exhaustion is mandatory,

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Booth, 532 U.S. at 741, and may only be excused if Plaintiff falls under a recognized exception.

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Since Plaintiff has failed to submit evidence showing that he is entitled to be excused from

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exhausting his administrative remedies his motion shall be denied.

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Accordingly, based on the foregoing, the Court HEREBY ORDERS that;

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Defendant’s motion to dismiss for failure to exhaust administrative remedies filed
February 22, 2011, is GRANTED;

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2.

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Plaintiff’s motion for be excluded from the exhaustion requirement filed May 4,
2011, is DENIED;

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3.

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Plaintiff’s motion in opposition to Defendant’s motion to dismiss filed May 13, 2011,
is STRICKEN form the record;

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4.

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This action is dismissed in its entirety, without prejudice, for failure to exhaust
administrative remedies;

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All pending motions are terminated; and

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

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IT IS SO ORDERED.

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Dated:
cm411

May 27, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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