Fields v. Masiel et al

Filing 31

FINDINGS and RECOMMENDATIONS Recommending Denying Defendant's Motion to Dismiss for Failure to Exhaust Administrative Remedies 25 , 26 , 27 , 30 OBJECTIONS DUE WITHIN THIRTY DAYS, signed by Magistrate Judge Barbara A. McAuliffe on 10/15/12: Matter referred to Judge Ishii. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KEVIN FIELDS,

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Plaintiff,

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CASE NO. 1:10-cv–01699-AWI-BAM PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENYING
DEFENDANTS’ MOTION TO DISMISS FOR
FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES

v.
JOSE MASIEL, et al.,

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Defendants.
(ECF Nos. 25, 26, 27, 30.)

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/ OBJECTIONS DUE WITHIN THIRTY DAYS
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Findings and Recommendations on Defendants’ Motion to Dismiss
I.

Procedural History

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Plaintiff Kevin Fields is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint, filed

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September 17, 2010, against Defendants Masiel, Aguirre, and Hernandez for retaliation in violation

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of the Eighth Amendment. (ECF No. 17.) On May 16, 2012, Defendants filed a motion to dismiss

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for failure to exhaust administrative remedies. (ECF No. 25.) Plaintiff filed an opposition on June

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4, 2012, and Defendants filed a reply on June 11, 2012. (ECF Nos. 26, 27.)

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In light of the decision in Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012), Plaintiff was

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provided with notice of the requirements for opposing a motion to dismiss on July 12, 2012, and

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granted thirty days in which to withdraw his opposition and file an amended opposition. (ECF Nos.

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28, 29.) On July 23, 2012, Plaintiff filed a notice stating that he would stand on his previously filed

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opposition. (ECF No. 30.)
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II.

Complaint Allegations

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Plaintiff alleges that on November 9, 2007, while being moved to a different facility,

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Defendants Masiel, Aguirre, and Hernandez confiscated his pillows that had been medically

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prescribed due to a neck surgery. When Plaintiff told the Defendants that he had a medical chrono

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for the pillows, Defendant Maciel stated that the pillows were not leaving his unit because Plaintiff

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filed staff complaints. Defendant Hernandez told Plaintiff to file a staff complaint ;and Defendant

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Aguirre just stood there shaking his head in agreement.

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III.

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Motion to Dismiss
A.

Legal Standard

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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). At the time relevant to this action, four levels of appeal were involved, including the

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informal level, first formal level, second formal level, and third formal level, also known as the

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“Director’s Level.” Cal. Code Regs. tit 15, § 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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B.

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Defendants contend that, although Plaintiff filed an inmate appeal regarding the incident

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alleged in the complaint, he did not pursue the appeal beyond the first level of review, and therefore

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failed to exhaust his administrative remedies. (Memorandum of Points and Authorities in Support

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of Motion to Dismiss 4, ECF No. 25-1.) Plaintiff opposes the motion on the ground that he received

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the relief he was requesting when his appeal was granted at the first level; and his appeal was

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exhausted. (Opp. 7, ECF No. 26.) Defendants reply that Plaintiff’s appeal was only partially granted

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as Plaintiff did not receive the monetary relief he was seeking. (Reply to Plaintiff’s Opposition 2,

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ECF No. 27.) Additionally, Defendants argue that even if Plaintiff’s appeal had been granted he

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would still be able to receive additional relief such as having Defendants no longer assigned to areas

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in which Plaintiff was housed. (Id. at 3.)

Discussion

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An inmate is required to pursue the administrative remedy process as long as some action can

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be taken in response to his grievance. Booth v. Churner, 532 U.S. 731, 738-39,121 S. Ct. 1819

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1823-24 (2001); Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). Once an inmate has received

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all the relief that is available or is informed that no further remedies are available, he does not need

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to further exhaust administrative remedies. Valoff, 422 F.3d at 935. It is defendant’s burden to

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prove that some relief is still available. Id. at 936. Relevant evidence to show that remedies

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continue to be available would be “statutes, regulations, and other official directives that explain the
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scope of the administrative review process; documentary or testimonial evidence from prison

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officials who administer the review process; and information provided to the prisoner concerning

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the operation of the grievance process.” Id. at 937.

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On November 26, 2007, Plaintiff submitted inmate appeal no. 07-5850, in which he grieved

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that Correctional Officers Jung, Hernandez, Maciel, and Aguirre confiscated his medically

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prescribed pillows as retaliation for Plaintiff exercising his First Amendment rights. Plaintiff

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requested that he be provided with three pillows, the correctional officers stop retaliating against him

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for filing inmate appeals, and monetary damages. (Inmate Appeal, Exhibit 39, p. 4, ECF No. 25-7.)

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Correctional Sergeant Morrison interviewed Plaintiff on January 21, 2008, and the appeal was

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partially granted for returning the pillows and not retaliating against Plaintiff for filing the appeal.

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(Id. at 6.)

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Defendants appear to concede that Plaintiff would not be able to obtain monetary damages

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through the administrative remedies process. Defendants do not submit any evidence to show that

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there were further remedies available to Plaintiff, but argue that Plaintiff could still obtain relief such

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as having Defendants no longer staff areas where Plaintiff is housed. (ECF No. 27 at 3.) The first

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level appeal granted Plaintiff’s request that Defendants not retaliate against Plaintiff for filing his

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inmate appeal. (Id.). Additionally, the appeal response does not include any language advising

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Plaintiff that he would need to further pursue his appeal in order to exhaust his administrative

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remedies. Plaintiff had requested that his pillows be returned and Defendants not retaliate against

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him for filing grievances and these requests were granted. Since the only relief which Plaintiff could

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receive under the administrative review process had already been granted, Plaintiff was no longer

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required to pursue his appeal to exhaust administrative remedies. Defendants have failed to meet

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their burden of showing that Plaintiff did not exhaust administrative remedies; and the motion to

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dismiss should be denied.

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IV.

Conclusion and Recommendation

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Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that Defendants’

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motion to dismiss for failure to exhaust administrative remedies, filed May 16, 2012, be denied on

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the ground that Plaintiff exhausted those remedies that were available to him through the
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administrative remedy process. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b).

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)

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days after being served with these findings and recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
10c20k

October 15, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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