Marquez v. Quintero et al

Filing 26

FINDINGS and RECOMMENDATIONS Recommending Granting Defendants' 13 Motion to Dismiss; Objections Due within Thirty Days signed by Magistrate Judge Barbara A. McAuliffe on 10/29/2012. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/3/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY MARQUEZ,

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Plaintiff,

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CASE NO. 1:10-cv-01965-AWI-BAM PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING GRANTING
DEFENDANTS’ MOTION TO DISMISS

v.
I. QUINTERO, et al.,

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(ECF No. 13)
Defendants.

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

Procedural History

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Plaintiff Anthony Marquez is a state prisoner proceeding pro se and in forma pauperis in this

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

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October 20, 2010, against Defendants D. Horban and I Quintero for deliberate indifference in

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violation of the Eighth Amendment. (ECF No. 9.) On April 6, 2012, Defendant Horban filed a

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motion to dismiss for failure to exhaust administrative remedies. (ECF No. 13.) In light of the

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decision in Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012), Plaintiff was provided with notice

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of the requirements for opposing a motion to dismiss and granted thirty days in which to file an

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opposition on July 13, 2012. Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003); (ECF Nos. 15, 16.)

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On August 16, 2012, Defendant Quintero joined in the motion to dismiss. (ECF No. 19.) Plaintiff

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received a thirty day extension of time to file his opposition on September 18, 2012. (ECF No. 21.)

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More than thirty days have passed and Plaintiff has failed to file an opposition. The matter is

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deemed submitted.
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II.

Allegations in Complaint

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On September 11, 2009, Plaintiff was moved and assigned an upper bunk. Plaintiff alleges

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that he informed Defendants Quintero and Horban that he had a medical chrono for a lower bunk,

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lower tier assignment due to a seizure disorder. Defendants refused to honor the medical chrono.

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On September 12, 2009, Plaintiff had a seizure and fell from the top bunk and was in a coma due to

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his injuries. (Compl. 3,1 ECF No. 1.)

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III.

Defendants’ Motion to Dismiss

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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

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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.

Legal Standard

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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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All references to pagination of specific documents pertain to those as indicated on the upper right corners
via the CM/ECF electronic court docketing system.

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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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2.

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Defendants argue that Plaintiff did not exhaust his administrative remedies because the only

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appeal he submitted regarding the incident alleged in the complaint was screened out as being

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untimely. (Memo. Points and Authorities in Support of Defendant’s Motion to Dismiss 4, ECF No.

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13-1.) In support of the motion, Defendants submit the declaration of M. Rocha, Appeals

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Coordinator at North Kern State Prison. Rocha states that the only appeal that Plaintiff submitted

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regarding this incident was filed on April 14, 2010, over seven months after the incident. The appeal

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was screened out at the second level of review and not assigned a log number because too much time

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had passed between the incident and when Plaintiff filed the appeal. (Rocha Dec. ¶ 6, ECF No. 13-

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2.) Defendants also submit the declaration of D. Foston, Chief of the Office of Appeals, who states

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that Plaintiff has not had any appeals accepted at the third level of review. (Foston Dec. ¶ 8, ECF

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No. 13-3.)

Discussion

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Pursuant to the PLRA, the exhaustion requirement is mandatory. McKinney v. Carey, 311

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F.3d 1198, 1199 (9th Cir. 2002). The requirement that an inmate exhaust administrative remedies

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prior to bringing suit serves two purposes. “Exhaustion gives an agency an opportunity to correct

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its own mistakes with respect to the programs it administers before being haled into federal

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court[,]”and “promotes efficiency by allowing claims to be resolved much more quickly and

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economically . . . than in litigation in federal court.” Sapp, 623 F.3d at 823 (internal punctuation and

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citations omitted). The inmate “must complete the administrative review process in accordance with

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the applicable procedural rules, including deadlines,” Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir.

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2010) (citations omitted), as a precondition to bringing suit, McKinney, 311 F.3d at 1200; Harvey,

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605 F.3d at 683. The PLRA requires that the administrative grievance process be completed prior

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to initiating the action in federal court. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006).
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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. (West 2009).2 “Any inmate or parolee

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under the department’s jurisdiction may appeal any departmental decision, action, condition, or

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policy which they can demonstrate as having an adverse effect upon their welfare.” Cal. Code Regs.

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tit. 15, § 3084.1(a). During the relevant time period, four levels of appeal were involved, including

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

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“Director’s Level,” and appeals had to be submitted within fifteen working days of the event being

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appealed. Id. at §§ 3084.5, 3084.6(c).

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Plaintiff is required to comply with the procedural rules governing the inmate appeals process

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and the exhaustion requirement may not be satisfied by filing an untimely appeal. Woodford, 548

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U.S. at 83-84. In this instance, Plaintiff was injured on September 12, 2009, and filed his appeal on

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April 14, 2010. The regulations required that Plaintiff file his grievance within fifteen working days

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of the alleged deliberate indifference of Defendants Quintero and Horban. Plaintiff’s grievance was

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filed well after the incident and clearly violated the fifteen-day time constraint. Plaintiff has

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submitted no evidence bringing into question the propriety of the screening decision rejecting his

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appeal as untimely, and therefore, Defendants are entitled to dismissal of this action for failure to

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exhaust administrative remedies. Sapp, 623 F.3d at 823-24.

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III.

Conclusion and Recommendation

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The Court finds that Plaintiff failed to exhaust his administrative remedies for his deliberate

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indifference claim against Defendants Horban and Quintero. Accordingly, the Court HEREBY

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RECOMMENDS that Defendants’ motion to dismiss be granted, and this action be dismissed,

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without prejudice, for failure to exhaust administrative remedies.

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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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All further references to the California Code of Regulation shall be to the 2009 regulations.

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Findings and Recommendations.” Plaintiff is 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 29, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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