Gonzales v. Hartley et al
Filing
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FINDINGS And RECOMMENDATIONS Recommending That This Action Be Dismissed Without Prejudice (Doc. 1 ), signed by Magistrate Judge Jennifer L. Thurston on 6/27/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 7/21/2011. (Fahrney, E)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT GONZALES,
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Plaintiff,
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Case No. 1:10-cv-02192 LJO JLT (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT THIS ACTION
BE DISMISSED WITHOUT PREJUDICE
vs.
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JAMES HARTLEY, et al.,
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Defendants.
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(Doc. 1)
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action
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pursuant to 42 U.S.C. § 1983. This proceeding was referred to the undersigned Magistrate Judge in
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accordance with 28 U.S.C. § 636(b)(1) and Local Rule 302. Pending before the Court is Plaintiff’s
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complaint filed November 24, 2010.
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I.
SCREENING REQUIREMENT
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The Court is required to review a case in which a prisoner seeks redress from a governmental
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entity or officer. 28 U.S.C. § 1915A(a). The Court must review the complaint and dismiss any portion
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thereof that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
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monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). If the Court
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determines the complaint fails to state a claim, leave to amend should be granted to the extent that the
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deficiencies in the pleading can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th
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Cir. 2000) (en banc).
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The Civil Rights Act under which this action was filed provides a cause of action against any
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“person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United
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States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
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immunities secured by the Constitution and laws [of the United States.]” 42 U.S.C. § 1983. To prove
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a violation of § 1983, a plaintiff must establish that (1) the defendant deprived him of a constitutional
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or federal right, and (2) the defendant acted under color of state law. West v. Atkins, 487 U.S. 42, 48
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(1988); Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989). “A person deprives another of a
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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in
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another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the
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deprivation of which [the plaintiff complains].” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993)
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(quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). In other words, there must be an actual
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causal connection between the actions of each defendant and the alleged deprivation. See Rizzo v.
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Goode, 423 U.S. 362, 370-71 (1976). Vague and conclusory allegations are insufficient to state a claim
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under § 1983. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim
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showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . .
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. claim is and the grounds upon which it rests[.]’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
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(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless, a plaintiff’s obligation to
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provide the grounds of entitlement to relief under Rule 8(a)(2) requires more than “naked assertions,”
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“labels and conclusions,” or “formulaic recitation[s] of the elements of a cause of action.” Twombly,
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550 U.S. at 555-57. The complaint “must contain sufficient factual matter, accepted as true, to ‘state
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a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d
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868, 883 (2009) (quoting Twombly, 550 U.S. at 570) (emphasis added).
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II.
THE COMPLAINT
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Plaintiff alleges that various prison officials at Avenal State Prison retaliated against him from
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June 2010 to at least September 2010. (Doc. 1 at 5-7.) Specifically, Plaintiff alleges that Defendants
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Vasquez, Lopez, Guerrero, Bass, and Cardwell made statements to Plaintiff while serving him his food,
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such as: “I hope you don’t die off this for all your 602s [inmate grievances] you filed.” (See id. at 5-7.)
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Plaintiff asserts that he has since undergone episodes of sharp stomach pain. (Id. at 3.) Accordingly,
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Plaintiff has filed the instant civil rights action seeking to recover monetary damages and injunctive
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relief. (Id.)
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III.
DISCUSSION
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Section 1997e(a) of the Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall
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be brought with respect to prison conditions under section 1983 of this title, or any other Federal law,
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by a prisoner confined in any jail, 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 thus required to exhaust all available
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administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007). Exhaustion of
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administrative remedies is mandatory regardless of the relief offered by the process, Booth v. Churner,
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532 U.S. 731, 741 (2001), and applies to all prisoner suits relating to prison life. Porter v. Nussle, 534
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U.S. 516, 532 (2002).
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In order to properly exhaust administrative remedies, an inmate must comply with the prison’s
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deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 93 (2006). In California,
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the Department of Corrections and Rehabilitation has established an administrative grievance system
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for prisoner complaints. See Cal. Code Regs, tit. 15 § 3084.1 (West 2009). Prisoners may appeal any
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departmental decision, action, condition or policy perceived by those individuals as adversely affecting
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their welfare. Id. at § 3084.1(a). The process is initiated by a prisoner submitting a CDCR Form 602,
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which is also known as an “inmate appeal.” Id. at § 3084.2(a). The inmate appeal typically proceeds
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through four levels of review: an informal level, the first formal level, the second formal level, and the
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third formal level, also known as the “Director’s Level.” Id. at § 3084.5. A final decision from the
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Director’s Level of review typically satisfies the exhaustion requirement under § 1997e(a). See, e.g.,
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Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D. Cal. 1997).
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The exhaustion requirement is not jurisdictional, but rather creates an affirmative defense that
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a defendant may raise in a non-enumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1117-
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19 (9th Cir. 2003). The defendant bears the burden of raising and proving the absence of exhaustion.
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Id. at 1119. In deciding the motion, “the court may look beyond the pleadings and decide disputed issues
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of fact.” Id. If the court concludes that the prisoner has not exhausted all of his available administrative
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remedies, “the proper remedy is dismissal of the claim without prejudice.” Id. at 1120. If a complaint
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contains exhausted and unexhausted claims, “the court proceeds with the good and leaves the bad.”
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Jones, 549 U.S. at 221.
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Here, Plaintiff concedes in his complaint that he has not exhausted his administrative remedies
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prior to filing this action. (See Doc. 1 at 2.) Plaintiff’s reason for not filing an inmate grievance on this
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matter is that the “process would take months to exhaust,” and he does not have that time because the
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alleged poisoning could cause “serious damage” and “possible death.” (Id.) Plaintiff’s general desire
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for a prompt response to his complaints, however, does not excuse him from satisfying the exhaustion
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requirement under the PLRA. See, e.g., Toliver v. Benov, No. CV 09-1993 PA (FMO), 2010 U.S. Dist.
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LEXIS 126645, at *10 (C.D. Cal. Sept. 29, 2010) (“[P]laintiff’s contention that his failure to exhaust
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his administrative remedies prior to filing his Complaint would be futile because the administrative
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process takes too long is unpersuasive.”) (internal citation omitted); Garcia v. Kirkland, No. C 05-0341
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MMC (PR), 2006 U.S. Dist. LEXIS 90878, at *17 (N.D. Cal. Dec. 7, 2006) (“The PLRA’s exhaustion
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requirement cannot be avoided simply because the litigant does not want to take the time to pursue all
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available administrative remedies.”). Accordingly, this action must be dismissed without prejudice. See
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Wyatt, 315 F.3d at 1120 (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal, so
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long as no exception to exhaustion applies.”).
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IV.
OTHER MATTERS
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Plaintiff has four motions for injunctive relief still pending before the Court. On January 14,
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2011, Plaintiff filed a motion for an injunction compelling prison officials at Avenal State Prison to
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provide Plaintiff with pens and legal materials. (Doc. 10.) On January 18, 2011, Plaintiff filed a motion
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for an injunction compelling the California Department of Corrections and Rehabilitation to provide
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Plaintiff with adequate medical treatment. (Doc. 11.) On May 10, 2011, Plaintiff filed a motion for an
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injunction compelling prison officials at Avenal State Prison to forward him his legal property. (Doc.
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13.) Finally, on May 17, 2011, Plaintiff filed a motion for an injunction compelling prison officials at
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California State Prison, Corcoran to grant him access to his legal property. (Doc. 15.)
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Federal courts are courts of limited jurisdiction, and in considering a request for preliminary
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injunctive relief, must have before it an actual case or controversy. City of Los Angeles v Lyons, 461
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U.S. 95, 102 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State,
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Inc., 454 U.S. 464, 471 (1982). If the Court does not have an actual case or controversy before it, it has
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no power to hear the matter in question. Lyons, 461 U.S. at 102.
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Here, in light of the Court’s recommendation that this action be dismissed without prejudice for
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Plaintiff’s failure to exhaust administrative remedies, there is no case or controversy upon which the
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Court can entertain injunctive relief. Accordingly, the Court also recommends that Plaintiff’s motions
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for injunctive relief be denied.
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V.
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CONCLUSION
For the reasons set forth above, it is HEREBY RECOMMENDED that:
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This case be DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to exhaust
administrative remedies prior to filing suit;
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2.
Plaintiff’s January 14, 2011 motion for an injunction (Doc. 10) be DENIED;
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3.
Plaintiff’s January 18, 2011 motion for an injunction (Doc. 11) be DENIED;
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Plaintiff’s May 10, 2011 motion for an injunction (Doc. 13) be DENIED;
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Plaintiff’s May 17, 2011 motion for an injunction (Doc. 15) be DENIED; and
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This case be CLOSED.
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These findings and recommendations are submitted to the United States District Judge assigned
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to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one (21) days after being
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served with these findings and recommendations, Plaintiff may file and serve written objections with
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the Court. A document containing objections should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is 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. See Martinez v. Ylst, 951 F.2d 1153 (9th
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Cir. 1991).
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IT IS SO ORDERED.
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Dated: June 27, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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