Espritt v. Saesee et al

Filing 67

FINDINGS and RECOMMENDATIONS recommending that Defendants' Rule 12(b)(6) Motion to Dismiss for Failure to Exhaust Remedies, Filed on May 7, 2014, be DENIED; Defendants be Required to either file a Motion for Summary Judgment pursuant to Albino v. Baca or File an Answer to the Second Amended Complaint re 17 and 56 ; referred to Judge Ishii, signed by Magistrate Judge Gary S. Austin on 09/13/14. Objections to F&R due by 10/20/2014 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:11-cv-00519-AWI-GSA-PC

BRIAN ESPRITT,

FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANTS‟
RULE 12(b)(6) MOTION TO DISMISS FOR
FAILURE TO EXHAUST REMEDIES BE
DENIED
(Doc. 56.)

vs.
A. SAESEE, et al.,

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Defendants.

OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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I.

BACKGROUND

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Brian Espritt (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing

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this action on March 28, 2011. (Doc. 1.) This case now proceeds on the Second Amended

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Complaint, filed by Plaintiff on July 20, 2012, against defendants A. Saesee (Correctional

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Counselor I) and Correctional Officers (C/Os) S. Hill, S. Torres, J. Davis, M. Lopez, A.

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Ballesteros, and Y. Magallon (collectively, “Defendants”), for use of excessive force in

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violation of the Eighth Amendment. (Doc. 17.)1

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On June 20, 2013, the court dismissed all other claims and defendants from this action, based on
Plaintiff‟s failure to state a claim upon which relief may be granted under § 1983. (Doc. 33.)
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On May 7, 2014, Defendants filed a Rule 12(b)(6) motion to dismiss this action on the

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ground that Plaintiff‟s failure to exhaust administrative remedies is evident on the face of the

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operative Second Amended Complaint. (Doc. 56.) On August 18, 2014, Plaintiff filed an

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opposition to the motion. (Doc. 62.) On August 25, 2014, Defendants filed a reply to

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Plaintiff's opposition. (Doc. 63.) Defendants‟ motion to dismiss is now before the Court.

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II.

PLAINTIFF’S ALLEGATIONS OF EXCESSIVE FORCE

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Plaintiff is presently incarcerated at Wasco State Prison in Wasco, California. The

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events at issue in the Second Amended Complaint occurred at the California Substance Abuse

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Treatment Facility (SATF) in Corcoran, California, while Plaintiff was incarcerated there.

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Plaintiff‟s factual allegations follow.

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Plaintiff alleges that on February 2, 2010, defendants C/Os Saesee, Hill, Torres, Davis,

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Lopez, Ballesteros, and Magallon assaulted Plaintiff.

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defendants Saesee, Hill, and Torres. Due to numerous blows to the head, Plaintiff fell to the

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ground and was repeatedly beaten and kicked, resulting in numerous injuries to his left ear,

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right cheek and eye, right shoulder, and right wrist, with cuts down to the bone. One of the

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responding officers, defendant Davis, applied his full body weight via his knee to the handcuffs

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on Plaintiff‟s right wrist, causing cuts down to the bone. While Plaintiff was face down on the

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ground in restraints, defendant Lopez grabbed Plaintiff‟s right foot and began slamming it up

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and down on the concrete in an apparent attempt to cause further injury.

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Ballesteros and Magallon then carried Plaintiff by the back of his shirt hem and the middle

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chain between his handcuffs, more than 100 yards to the program office, choking Plaintiff to

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unconsciousness, then dumping him into a standing “one-man” cage head first, causing further

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facial injuries as well as bloody left toes due to being dragged 100 yards over asphalt. (Second

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Amd Cmp, Doc. 17 at 5:4-5.) Plaintiff‟s shoes and socks were removed during the initial

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assault. Prior to being taken to the program office, Plaintiff overheard an unknown officer say,

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“Lieutenant Goss gave us a „green light‟ (slang for „thumbs up‟) but you guys are gonna mess it

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up,” in response to the length and intensity of the beating. (Id. at 5:9-12.)

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///
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Initially, Plaintiff was struck by

Defendants

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As a result of the officers‟ actions, Plaintiff suffered a permanent split to his top left ear,

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a black eye, and lacerations to his right cheek and shoulder. Also, Plaintiff‟s right wrist was cut

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down to the bone. Two and a half years later, Plaintiff was still suffering from frequent

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headaches and loss of memory and concentration.

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III.

LEGAL STANDARDS

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A.

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In considering a motion to dismiss, the court must accept all allegations of material fact

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in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d

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1081 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 48

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L.Ed.2d 338 (1976). The court must also construe the alleged facts in the light most favorable

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to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974),

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overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139

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(1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or

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doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411,

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421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). In addition, pro se pleadings are held to a less

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stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520, 92

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S.Ct. 594, 30 L.Ed.2d 652 (1972). However, legally conclusory statements, not supported by

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actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.

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1937, 1949–50, 173 L.Ed.2d 868 (2009).

Rule 12(b)(6) Motion To Dismiss For Failure To State A Claim

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In deciding a Rule 12(b)(6) motion, the court generally may not consider materials

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outside the complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);

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Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1)

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documents whose contents are alleged in or attached to the complaint and whose authenticity

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no party questions, see id. at 454; (2) documents whose authenticity is not in question, and

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upon which the complaint necessarily relies, but which are not attached to the complaint, see

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Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and

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materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377

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(9th Cir. 1994).
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B.

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Section 1997e(a) of the Prison Litigation Reform Act of 1995 (APLRA@) provides that

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A[n]o action shall be brought with respect to prison conditions under [42 U.S.C. ' 1983], or any

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other 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). Prisoners

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are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock,

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549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-

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1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and

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regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct.

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1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life,

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Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).

Statutory Exhaustion Requirement

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

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defense under which defendants have the burden of raising and proving the absence of

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exhaustion. Jones, 549 U.S. at 216. The failure to exhaust nonjudicial administrative remedies

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that are not jurisdictional is ordinarily subject to a motion for summary judgment in which the

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court may look beyond the pleadings.

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However, where an inmate‟s complaint shows a failure to exhaust on its face, it is subject to

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dismissal under Rule 12(b)(6). Id. at 1166; Jones, 549 U.S. at 215 (“A complaint may be

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subject to dismissal under Rule 12(b)(6) when an affirmative defense ... appears on its face.”)

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(quoting Loveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001)).

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C.

Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir.).

CDCR’s Administrative Grievance System

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The Court takes judicial notice of the fact that the California Department of

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Corrections and Rehabilitation (CDCR) has an administrative grievance system for prisoner

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complaints. Cal.Code Regs., tit. 15 ' 3084.1. The process is initiated by submitting a CDC

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Form 602. Id. at ' 3084.2(a)(2010). In 2010, prisoners were required to submit appeals within

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thirty calendar days of the event being appealed or of receiving an unacceptable lower level

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appeal decision.

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including the first level, second level, and third level. Id. at ' 3084.7(2010). In order to satisfy

Id. at ' 3084.8(b)(2010).

Three formal levels of appeal are involved,

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' 1997e(a), California state prisoners are required to use this process to exhaust their claims

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prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85 (2006); McKinney, 311 F.3d. at 1199-

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1201.

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IV.

DEFENDANTS’ MOTION

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Defendants move to dismiss this action on the ground that Plaintiff‟s failure to exhaust

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the CDCR=s administrative appeals process for his excessive force claims against them is

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evident on the face of the Second Amended Complaint. Defendants argue that Section II(C) of

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the Second Amended Complaint clearly concedes that the claims were not exhausted, pursuant

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to Plaintiff‟s allegations in that section:
“Appeal and misconduct complaint still not returned to plaintiff via prison‟s
mail system. Subsequent appeals not returned as well. Plaintiff did however
give video interview to officials approx. 3-5 days after incident. No charges
filed against defendant.”

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(Doc. 17 at 2 ¶II(C)) (emphasis in original).

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Defendants assert that the Second Amended Complaint does not provide further context

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to indicate whether the appeal Plaintiff submitted could have exhausted the excessive force

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claims against Defendants. Defendants assert that the Second Amended Complaint does not

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allege when the appeal was submitted for review, where it was submitted, or to whom it was

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submitted. Defendants further assert that the Second Amended Complaint does not indicate

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what was contained in the appeal or whether Plaintiff attempted to pursue the appeal through

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all levels of administrative review. Defendants argue that Plaintiff appears to imply that it was

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futile to pursue his appeal, which is not an exception to the exhaustion requirement.

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Plaintiff’s Opposition

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Plaintiff argues that he did not concede in the Second Amended Complaint that he

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failed to exhaust his available remedies. Plaintiff asserts that he pursued his administrative

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remedies via CDCR 602 appeals, but those appeals went unanswered and unreturned. Plaintiff

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argues that prison employees themselves made his remedies unavailable. Plaintiff alleges that

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prison officials refused to process or return any of his appeals concerning the assault.

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Plaintiff alleges that he filed an assault and misconduct form at Pleasant Valley State

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Prison (PVSP) on February 9, 2010 and after receiving no response, filed successive appeals at

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PVSP regarding the same issue on May 20, 2010 and June 19, 2010.2 Plaintiff alleges that

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none of the appeals were responded to or returned to him. Plaintiff alleges that he was unable

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to submit the appeals to any level higher than the first level of review, because he never

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received a response at the first level.

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Plaintiff also refers to evidence of exhaustion of remedies he submitted to the court in
opposition to Defendants‟ prior motion to dismiss of September 18, 2013.
Defendants’ Reply

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Defendants argue that Plaintiff has not shown that he exhausted his administrative

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remedies. Defendants assert that Plaintiff has admitted that he did not receive a Third Level

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decision on his excessive force claims against Defendants. Defendants argue that Plaintiff

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improperly relies on evidence outside of the Second Amended Complaint, and on prior

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arguments he submitted in opposition to Defendants‟ prior motion to dismiss, in an effort to

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show that he should be excused from the exhaustion requirement. Defendants argue that

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Plaintiff fails to specifically address Defendants‟ arguments and does not identify any specific

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allegations in the Second Amended Complaint showing that he exhausted his remedies or was

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excused from the exhaustion requirement.

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Discussion

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This case now proceeds only on Plaintiff=s claims against defendants Saesee, Hill,

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Torres, Davis, Lopez, Ballesteros, and Magallon, for use of excessive force in violation of the

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Eighth Amendment. Plaintiff‟s claims arise from an alleged assault by Defendants against

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Plaintiff on February 20, 2010, when Plaintiff was beaten and fell to the ground in restraints,

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after which his foot was slammed on the concrete, and he was dragged over concrete, choked to

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unconsciousness, and dumped head first into a cage, causing cuts, bruises, and lacerations.

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Plaintiff was transferred from SATF to PVSP only hours after the excessive force event occurred.
(Second Amended Complaint, Doc. 17 at 6:4-5.)
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It is undisputed that Plaintiff failed to exhaust his remedies at the prison. Plaintiff

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acknowledges that he did not complete the appeals process to the final level of review because

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he never received a response at the first level of review and therefore could not proceed to

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higher levels.

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dismissal of this action. See Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005) (A[A]

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prisoner need not press on to exhaust further levels of review once he has either received all

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>available= remedies at an intermediate level or has been reliably informed by an administrator

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that no remedies are available@). As discussed above, ' 1997e(a) provides that A[n]o action

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shall be 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 such

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administrative remedies as are available are exhausted.@ 42 U.S.C. ' 1997e(a) (emphasis

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added). The question here is whether the evidence on the face of the Second Amended

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Complaint conclusively shows that Plaintiff had remedies available to him which he failed to

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exhaust.3

However, the mere absence of exhaustion does not entitle Defendants to

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At issue is Plaintiff‟s response in the Second Amended Complaint to the question, “Is

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the [inmate appeal or administrative remedy process available at your institution] completed?”

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As noted above, Plaintiff responded, with respect to Claim 1 (his excessive force claim), as

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follows:

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“Appeal and misconduct complaint still not returned to plaintiff via prison‟s
mail system. Subsequent appeals not returned as well. Plaintiff did however
give video interview to officials approx. 3-5 days after incident. No charges
filed against defendant.”
(Doc. 17 at 2 ¶II(C)) (emphasis in original).

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Defendants‟ argument that Plaintiff‟s case should be dismissed because he fails to

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allege facts in the Second Amended Complaint showing that he exhausted his administrative

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remedies is unpersuasive, because section 1997e(a) does not impose a pleading requirement

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The court shall not consider any evidence outside of the Second Amended Complaint and the pleadings
to resolve Defendants‟ motion. Defendants have not styled their motion as a motion for summary judgment, and
the court declines to convert the motion into a motion for summary judgment. Therefore, the court will apply the
standards applicable to Rule 12(b)(6) motions to dismiss, set forth above.
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upon Plaintiff. Jones, 549 U.S. at 216. It is the Defendants who bear the burden of raising and

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proving failure to exhaust administrative remedies. Id.

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Plaintiff‟s allegation, in the Second Amended Complaint, that his appeals were not

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returned to him via the prison mail system raises the issue of improper screening, and the Ninth

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Circuit has clarified that improper screening of an inmate's grievances renders administrative

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remedies “effectively unavailable” such that exhaustion is not required under the PLRA. Sapp

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v. Kimbrell, 623 F.3d 813, 826–27 (9th Cir. 2010). Plaintiff argues in his opposition to

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Defendants‟ motion that he did not concede in the Second Amended Complaint that he failed to

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exhaust his available remedies.

Thus, the court cannot find that the Second Amended

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Complaint conclusively shows on its face that Plaintiff had remedies available to him which he

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did not exhaust. Therefore, Defendants‟ motion to dismiss must be denied.

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V.

CONCLUSION AND RECOMMENDATIONS

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Based on the foregoing, the court cannot find that the Second Amended Complaint

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conclusively shows on its face that Plaintiff had remedies available to him which he did not

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exhaust. Therefore, IT IS HEREBY RECOMMENDED that:

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1.

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Defendants‟ Rule 12(b)(6) motion to dismiss for failure to exhaust remedies,
filed on May 7, 2014, be DENIED; and

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Defendants be required to either file a motion for summary judgment pursuant to
Albino v. Baca,4 or file an Answer to the Second Amended Complaint.

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These findings and recommendations are 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

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

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objections with the court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations." Any reply to the objections shall be served and filed

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within ten days after service of the objections. The parties are advised that failure to file

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In Albino v. Baca, the Ninth Circuit held that a motion for summary judgment is the appropriate
procedural device for pretrial determination of whether administrative remedies have been exhausted under the
PLRA. Albino, 747 F.3d at 1170.
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objections within the specified time may waive the right to appeal the District Court's order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

September 13, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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