Ilsung v. Mobert

Filing 32

FINDINGS and RECOMMENDATIONS recommending that Defendant's Motion to Dismiss 23 be DENIED; re 23 MOTION to DISMISS filed by Robert Mobert ; referred to Judge Ishii, signed by Magistrate Judge Michael J. Seng on 02/1/2013. Objections to F&R due by 2/18/2013 (Martin-Gill, 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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VICTORY ILSUNG,

CASE No. 1:10-cv-02070-AWI-MJS (PC)
FINDINGS AND RECOMMENDATION
DENYING DEFENDANT’S MOTION TO
DISMISS ACTION FOR FAILURE TO
EXHAUST ADMINISTRATIVE
REMEDIES

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Plaintiff,
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vs.

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(ECF No. 23)

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ROBERT MOBERT,

OBJECTIONS DUE WITHIN
FOURTEEN (14) DAYS

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Defendant.

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_____________________________/

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I.

PROCEDURAL HISTORY
Plaintiff Victory Ilsung, a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action on November 8, 2010 pursuant to 42 U.S.C. §

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1983. (ECF No. 1.)

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The Court screened the First Amended Complaint and ordered service as to

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cognizable claims for First Amendment retaliation and Eighth Amendment medical

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indifference against Defendant Mobert. (ECF No. 14.) On August 3, 2012, Defendant

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Mobert filed a Motion to Dismiss the Eighth Amendment claim pursuant to Fed. R. Civ.

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P. 12(b) on grounds Plaintiff failed to exhaust administrative remedies. (Mot. Dismiss.,

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ECF No. 23.) Therein Defendant notified Plaintiff of his rights, obligations and methods

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for opposing the Motion to Dismiss pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir.

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2012) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). Plaintiff filed Opposition to

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the Motion to Dismiss on October 15, 2012. (Opp’n to Mot. Dismiss.,ECF No. 29.) On

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October 23, 2012, Defendant filed a Reply to the Opposition. (Reply to Opp’n, ECF No.

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30.) On November 13, 2012, Plaintiff filed a purported response to Defendant’s reply.1

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(Resp. to Reply, ECF No. 31.) The Motion to Dismiss is now ready for ruling.

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II.

SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff, an inmate at the California Substance Abuse Treatment Facility and

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State Prison at Corcoran (“SATF”), requires dialysis and has a medical chrono for ice

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chips to be provided three times a day. Defendant Mobert is a correctional officer at

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SATF. Defendant Mobert deliberately refused to provide Plaintiff with medical ice

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during June-September 2009 notwithstanding knowledge that Plaintiff’s medical chono

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required the ice; Plaintiff would become extremely ill without the ice; and his supervisor

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had ordered Mobert to provide the ice.
Plaintiff’s inmate appeal relating to the denial of ice was granted. Defendant

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Mobert retaliated by continued refusal to allow delivery of the ice and by following

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Plaintiff to re-assigned housing and repeatedly searching his cell and confiscating and

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destroying his personal property. Mobert told Plaintiff he was doing so because Plaintiff

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“wrote him [] up”. Plaintiff filed a further grievance which resulted in a finding of staff

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misconduct.
Plaintiff seeks unspecified injunctive relief, monetary damages, costs and fees.

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III.

LEGAL STANDARD
The Prison Litigation Reform Act (“PLRA”) stipulates, “No action shall be

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Plaintiff’s surreply is unauthorized and is not considered by the Court.

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brought with respect to prison conditions under [42 U.S.C. § 1983], or any other

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Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

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such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

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Therefore, prisoners are required to exhaust all available administrative remedies prior

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to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007). The Supreme Court held that

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“the PLRA's exhaustion requirement applies to all inmate suits about prison life,

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whether they involve general circumstances or particular episodes, and whether they

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allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532

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(2002). Further, the exhaustion of remedies is required, regardless of the relief sought

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by the prisoner, as long as the administrative process can provide some sort of relief

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on the prisoner's complaint. Booth v. Churner, 532 U.S. 731, 741 (2001). “[P]roper

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exhaustion of administrative remedies is necessary,” and “demands compliance with

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an agency's deadlines and other critical procedural rules . . . .” Woodford v. Ngo, 548

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U.S. 81, 90-91 (2006).

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The California Department of Corrections and Rehabilitation (“CDCR”) has an

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administrative grievance system for prisoner complaints; the process is initiated by

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submitting a CDCR Form 602. Cal. Code Regs. tit. 15, §§ 3084.1, 3084.2(a) (2009).

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During the time relevant to this case, four levels of appeal existed: an informal level, a

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

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“Director's Level”; each successive appeal had to be submitted within fifteen working

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days of the event being appealed. Id. at §§ 3084.5, 3084.6(c).

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

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affirmative defense under which Defendants have the burden of raising and proving

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the absence of exhaustion. Jones, 549 U.S. at 215; Wyatt, 315 F.3d at 1119. The

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failure to exhaust non-judicial administrative remedies that are not jurisdictional is

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subject to an unenumerated Rule 12(b) motion, rather than a summary judgment

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motion. Wyatt, 315 F.3d at 1119, citing Ritza v. Int'l Longshoremen's &

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Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998). In deciding a motion to

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dismiss for failure to exhaust administrative remedies, the Court may look beyond the

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pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119–20. If the Court

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concludes that the prisoner has failed to exhaust administrative remedies, the proper

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remedy is dismissal without prejudice. Id.

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IV.

ARGUMENTS

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A.

Defendant’s Moving Argument

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Plaintiff, who submitted twenty-three appeals during the period June 1, 2009

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through April 10, 2012, did not obtain a third level decision on his Eighth Amendment

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medical ice claim.

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He filed only three grievances relating to deprivation of medical ice, none of
which was exhausted at the third level.

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More specifically:

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Appeal No. 09-02406 filed on July 17, 2009, alleged staff misconduct concerning

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medical ice and retaliatory failure to properly handle Plaintiff’s laundry. This Appeal was

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granted in part at the Second Level, such that an investigation was conducted finding

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no staff violation of CDCR policy. This Appeal was not exhausted at the third level. An

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appeal decision regarding only staff misconduct does not exhaust as to any direct relief

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sought in the Appeal.

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Appeal No. 09-02441 filed on July 21, 2009, alleged ADA deprivation of three-

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times-a-day medical ice, denial of sheet exchange, and a request for different housing.

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This Appeal was granted in part at the first level, that “[Plaintiff] will receive [his] ice

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chips as prescribed and [instructing Plaintiff] on when to have [his] sheets ready for

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exchange.” (First Am. Compl. Ex. B at 28.) The request for housing change was not

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granted at or appealed beyond the first level.

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A purported Appeal was filed on July 22, 2009, concerning ice chips. This Appeal

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was screened out as duplicative of the above two Appeals, and not exhausted.

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Woodford, 548 U.S. at 83-84.
Accordingly, Plaintiff did not exhaust at the third level any appeal concerning

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medical ice. (Zamora Decl. at ¶¶ 5-6; Lozano Decl. at ¶¶ 3-11.)

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B.

Plaintiff’s Opposition Argument

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Plaintiff mailed Appeal No. 09-02406 to the third level on October 13, 2009, but

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received no response because third level employees are working with Defendant

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Mobert to interfere with Plaintiff’s appeal rights.
Thus Plaintiff was prevented from exhausting Appeal No. 09-02406 at the third

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level. He exhausted all appeal remedies available to him.

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C.

Defendant’s Reply Argument

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Plaintiff concedes he failed to obtain a third level decision on his Eighth

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Amendment medical ice claim. He fails to provide facts supporting his contention he

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mailed Appeal No. 09-02406 for third level review.
Plaintiff provides no facts supporting his contention that third level review staff

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interfered with his Appeal No. 09-02406. Moreover, Plaintiff’s successful submission of

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an appeal for third level review in January 2010 belies the alleged staff interference.

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Plaintiff may have completed the purported third level appeal request attached

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as Exhibit 1 to his Opposition only after the fact and in response to the instant motion.

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V.

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ANALYSIS
Defendant argues the Appeals that included a medical ice claim were not

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exhausted at the third level and that any Appeal decision regarding only staff

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misconduct does not exhaust as to any direct relief sought.

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After carefully reviewing the record, the undersigned concludes Defendant’s
Motion should be denied. Plaintiff’s medical ice appeal was granted, providing him with

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all relief sought therein and exhausting administrative remedies on that claim.

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A.

Plaintiff’s Appeal for Three Times-A-Day Ice Chips Granted

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Plaintiff’s Appeal No. 09–02441, which alleged denial of ice chips three times a

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day as prescribed, and denial of sheet exchange, was granted at the first level as to

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three times-a-day ice chips. (First Am. Compl., Ex. B at 28.) This fully satisfied Plaintiff’s

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ice chips claim, which is the basis for his Eighth Amendment claim in this action.
The court rejects Defendant’s argument that a third level appeal response is

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necessary to satisfy the exhaustion requirement and the mere absence of a third level

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response entitles him to dismissal. Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir.

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2005) (“[A] prisoner need not press on to exhaust further levels of review once he has

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either received all ‘available’ remedies at an intermediate level or has been reliably

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informed by an administrator that no remedies are available.”)
An inmate has no obligation to appeal from a grant of relief, or a partial grant that

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satisfies him, in order to exhaust his administrative remedies. Nor is it the prisoner's

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responsibility to ensure that prison officials actually provide the relief that they have

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promised. See Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004) (“A prisoner who

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has not received promised relief is not required to file a new grievance where doing so

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may result in a never-ending cycle of exhaustion.”).
Plaintiff, having received all relief he sought as to medical ice chips, the

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administrative process allowed for no further relief. Booth, 532 U.S. at 741.
The primary purpose of a grievance is to alert the prison to a problem and

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facilitate its resolution,” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). This

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Plaintiff accomplished to the point of complete resolution of his medical ice claim.
The Court need not, and does not reach the balance of the arguments presented

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and expresses no opinion thereon.

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VI.

CONCLUSIONS AND RECOMMENDATION
Plaintiff’s appeal seeking three times-a-day medical ice was granted at the first

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level of review. Defendant has not carried his burden of establishing Plaintiff’s failure to

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exhaust available administrative remedies pursuant to 42 U.S.C. § 1997e(a) on the

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Eighth Amendment medical ice claim.
Accordingly, for the reasons stated above the Court RECOMMENDS that

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Defendant’s Motion to Dismiss (ECF No. 23) be DENIED. These findings and

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recommendation are submitted to the United States District Judge assigned to the

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case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14)

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days after being served with these findings and recommendation, any party may file

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written objections with the Court and serve a copy on all parties. Such a document

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should be captioned “Objections to Magistrate Judge's Findings and Recommendation.”

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Any reply to the objections shall be served and filed within ten (10) days after service of

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the objections. The parties are advised that failure to file objections within the specified

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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.

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Dated:
12eob4

February 1, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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