Villatoro v. Brown et al

Filing 10

ORDER to SHOW CAUSE as to Why This Action Should Not Be Dismissed, Without Prejudice, for Failure to Exhaust Administrative Remedies, signed by Magistrate Judge Gerald B. Cohn on 5/24/2012. Show Cause Response due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JORGE VILLATORO,

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Plaintiff,

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CASE NO. 1:11-cv-00971-GBC (PC)

v.
JERRY BROWN, et al.,
Defendants.

ORDER TO SHOW CAUSE AS TO WHY
THIS ACTION SHOULD NOT BE
DISMISSED, WITHOUT PREJUDICE, FOR
FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES
Doc. 1
/ THIRTY DAY DEADLINE

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I. Procedural History and Plaintiff’s Allegations

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On May 27, 2011, Plaintiff Jorge Villatoro (“Plaintiff”), a state prisoner proceeding pro se

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and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging Eighth

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Amendment deliberate indifference to medical need by the medical department at Wasco State

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Prison and Pleasant Valley State Prison. Compl. at 3, Doc. 1. In Plaintiff’s complaint, he states that

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he completed exhaustion of administrative remedies. Id. at 2. However, he notes that “Plaintiff filed

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a grievance in compliance with the rules and regulations and court. The defendants have failed to

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respond to any of the grievance or complaints.” Id. Plaintiff does not submit further information

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demonstrating that he exhausted through the third level of review. See id.

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II. Failure to Exhaust Administrative Remedies

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A. Legal Standard

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Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be

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brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a
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prisoner confined in any jail, prison, or other correctional facility until such administrative remedies

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as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is

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therefore mandatory, and no longer left to the discretion of the district court. Woodford v. Ngo, 548

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U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). The PLRA’s exhaustion

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requirement requires “proper exhaustion” of administrative remedies. Ngo, 548 U.S. at 93. This

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means “[p]risoners must now exhaust all ‘available’ remedies,” id. at 85, in “compliance with an

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agency’s deadlines and other critical procedural rules.” Id. at 90–91. The requirement cannot be

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satisfied “by filing an untimely or otherwise procedurally defective administrative grievance or

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appeal.” Id. Further, the remedies “available” need not meet federal standards, nor need they be

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“plain, speedy and effective.” Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth, 532 U.S. at 739-40

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& n.5.

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It is the prison’s requirements, and not the PLRA, that define the boundaries of proper

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exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007). The California Department of Corrections and

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Rehabilitation (“CDCR”) provides inmates the right to file administrative appeals alleging

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misconduct by correctional officers or “any departmental decision, action, condition, or policy which

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they can demonstrate as having an adverse effect upon their welfare.” See Cal. Code Regs. tit. 15,

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§§ 3084.1(a) & (e). In order to exhaust all available administrative remedies within this system, a

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prisoner must submit his complaint as an inmate appeal on a 602 form, within fifteen1 working days

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from the date the administrative decision or action being complained of, and proceed through several

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levels of appeal: (1) informal level grievance filed directly with any correctional staff member; (2)

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first formal level appeal filed with one of the institution’s appeal coordinators; (3) second formal

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level appeal filed with the institution head or designee; and (4) third formal level appeal filed with

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the CDCR director or designee. Id. at §§ 3084.5 & 3084.6(c); Brodheim v. Cry, 584 F.3d 1262,

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1264–65 (9th Cir. 2009); Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). See Ngo v.

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Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008) (Ngo II) (finding claims unexhausted where filed

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more than fifteen working days after deadline).

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As of July 2011, inmates have thirty calendar days to file appeals. § 3084.8(b).
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A prisoner’s concession to non-exhaustion is valid grounds for dismissal so long as no

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exception to exhaustion applies. 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th

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Cir. 2003). The Court may review exhibits attached to the complaint that may contradict Plaintiff’s

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assertions in the complaint. Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000); Durning v. First

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Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). In deciding . . . failure to exhaust administrative

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remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315

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F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative

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remedies, the proper remedy is dismissal without prejudice. Id.

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B. Analysis

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It is apparent from the face of Plaintiff’s complaint that he did not exhaust his administrative

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remedies prior to bringing this lawsuit. See Compl at 3, Doc. 1. Plaintiff states he exhausted his

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administrative remedies but also notes that Defendants never responded to his grievance. Id. The

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Court notes that the administrative remedies “available” need not meet federal standards, nor need

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they be “plain, speedy and effective.” Porter, 435 U.S. at 524; Booth, 532 U.S. at 739-40 & n.5. In

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Plaintiff’s complaint, he contends that he did not receive a response to his grievance. (“[W]e stress

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the point . . . that we will not read futility or other exceptions into statutory exhaustion requirements

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where Congress has provided otherwise.”) See Booth, 532 U.S. at 741 n.6. After Plaintiff did not

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receive a response to his inmate appeal, he was not permitted to determine exhaustion futile, but was

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obligated to treat his grievance as denied and file an appeal, in accordance with Booth, 532 U.S. at

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741 n.6.

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In Ngo, the Supreme Court held that full and “proper exhaustion of administrative remedies

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is necessary.” Ngo, 548 U.S. at 84. While the Supreme Court recognized that this may be harsh, it

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noted that pro se prisoners who litigate in federal court will likewise be “forced to comply with

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numerous unforgiving deadlines and other procedural requirements.” Id. at 103. The Supreme Court

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recognized that this will prevent certain prisoner cases from proceeding, but notes that a “centerpiece

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of the PLRA’s effort to reduce the quantity . . . of prisoner suits is an ‘invigorated’ exhaustion

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provision, § 1997e(a).” Id. at 84 & 103. “Exhaustion is no longer left to the discretion of the district

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court, but is mandatory.” Id. at 85.
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It is apparent on the face of Plaintiff’s complaint that he did not exhaust his administrative

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remedies through the third level of review prior to bringing this lawsuit. See Compl. at 3, Doc. 1.

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Moreover, Plaintiff concedes that Defendants did not respond to his grievance. Id. Thus, Plaintiff

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failed to exhaust all his mandatory administrative remedies against Defendants prior to initiating this

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action, which requires mandatory dismissal, in accordance with § 1997e(a) and Ngo.

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III. Conclusion

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Based on the foregoing, it is HEREBY ORDERED that within thirty (30) days of the service

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of this order, Plaintiff SHALL SHOW CAUSE as to why this action should not be dismissed,

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without prejudice, for Plaintiff’s failure to exhaust administrative remedies, pursuant to 42 U.S.C.

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§ 1997e(a).

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IT IS SO ORDERED.

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Dated:
7j8cce

May 24, 2012
UNITED STATES MAGISTRATE JUDGE

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