O'Connell v. Kern Valley State Prison et al

Filing 44

ORDER GRANTING Defendants' Motion to Strike Plaintiff's Unauthorized Surreply and DENYING Plaintiff's Request for Leave to File a Surreply 38 , 41 ; ORDER GRANTING Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies 29 ; ORDER DENYING Motion for 60-Day Extension of Time as MOOT 43 , signed by Magistrate Judge Barbara A. McAuliffe on 8/14/13: This action is DISMISSED without prejudice for failure to exhaust. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN P. O’CONNELL,

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Plaintiff,

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v.

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KERN VALLEY STATE PRISON, et al.,

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Defendants.

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I.

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Case No.: 1:11-cv-02163-BAM PC
ORDER GRANTING DEFENDANTS’ MOTION
TO STRIKE PLAINTIFF’S UNAUTHORIZED
SURREPLY AND DENYING PLAINTIFF’S
REQUEST FOR LEAVE TO FILE A SURREPLY
(ECF Nos. 38, 41)
ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES (ECF NO. 29)
ORDER DENYING MOTION FOR 60-DAY
EXTENSION OF TIME AS MOOT (ECF No. 43)

Procedural History
Plaintiff Kevin P. O’Connell (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on

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December 30, 2011. On July 18, 2012, pursuant to 28 U.S.C. § 1915A, the Court issued an order that

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this action shall proceed on Plaintiff’s first amended complaint against Defendants Rodriguez,

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Northcutt, and Howard for excessive force in violation of the Eight Amendment, and assault, battery

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and negligence under California law. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

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S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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On November 20, 2012, Defendants filed a motion to dismiss for failure to exhaust

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administrative remedies. Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on December 14, 2012,

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and a duplicate opposition on December 20, 2012. Defendants filed a reply on December 21, 2012.

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Plaintiff filed a surreply on January 3, 2013. Defendants filed a motion to strike the surreply on

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January 9, 2013. (ECF No. 38.) Plaintiff filed a motion for leave to file a surreply on January 18,

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2013. (ECF No. 41.) On July 15, 2013, Plaintiff filed a motion for a sixty-day extension of this

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action. (ECF No. 43.) The motions are deemed submitted. Local Rule 230(l).

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II.

Motion to Strike Plaintiff’s Surreply and Plaintiff’s Request for Leave to file a Surreply

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On November 30, 2012, Defendants filed a motion to dismiss this action based on Plaintiff’s

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failure to exhaust administrative remedies. Plaintiff opposed the motion on December 14, 2012, and

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Defendants replied on December 21, 2012. Plaintiff filed a surreply on January 3, 2013.

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Defendants filed their motion to strike Plaintiff’s surreply on January 9, 2013, arguing that it is not

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authorized by the Federal Rules of Civil Procedure or the Local Rules of this Court and there is no

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valid reason for additional briefing on the motion to dismiss.

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On January 18, 2013, Plaintiff filed a motion for leave to file a surreply, arguing that it is

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warranted because he raised new arguments and new requests in his surreply. Plaintiff appeals to the

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Court’s “sense of fair play and decency” and contends that he had limited access to the law library

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during the relatively short time to brief the motion to dismiss.

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The Local Rules of this Court governing motions in prisoner cases do not provide for the

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submission of a surreply. Local Rule 230(l). A district court may allow a surreply to be filed, but

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only “where a valid reason for such additional briefing exists, such as where the movant raises new

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arguments in its reply brief.” Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. Nov. 8, 2005).

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Defendants did not raise new arguments in their reply that required additional arguments from

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Plaintiff, Plaintiff did not seek leave to file a surreply before he actually filed it, and the arguments in

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the surreply do not alter the analysis below. To the extent Plaintiff suggests that he required additional

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time to prepare his briefing, he should have applied to this Court for an extension of time.

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Accordingly, the Court finds that Plaintiff’s surreply is not authorized and should be stricken from the

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record. Therefore, Defendants’ motion to strike is GRANTED, and Plaintiff’s request for leave to file

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a surreply is DENIED.

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IV.

Motion to Dismiss for Failure to Exhaust Administrative Remedies

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A.

Legal Standard

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Defendants argue that Plaintiff failed to exhaust his administrative remedies in compliance

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with 42 U.S.C. § 1997e(a), subjecting the action to dismissal. Section 1997e(a) of the Prison

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Litigation Reform Act of 1995 provides that “[n]o action shall be brought with respect to prison

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conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail,

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prison, or other correctional facility until such administrative remedies as are available are exhausted.”

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Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief

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offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement

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applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).

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

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under which Defendants have the burden of raising and proving the absence of exhaustion. Jones v.

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Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 921 (2007); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.

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2003). The failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject

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to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at

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1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir.

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1998) (per curium)). In deciding a motion to dismiss for failure to exhaust administrative remedies,

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the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-

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20. If the Court 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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B.

Grievance Procedure

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The California Department of Corrections and Rehabilitation has an administrative grievance

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system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1. During the relevant time period,

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the process was initiated by submitting a CDC Form 602 describing the problem and the action

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requested. Id. at § 3084.2(a). At the time of the all eged incident, appeals had to be submitted within

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fifteen working days of the event being appealed or of the receipt of the unacceptable lower level
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decision. Id. at § 3084.3.1 Four levels of appeal are involved, including the informal level, first

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formal level, second formal level, and third formal level, also known as the “Director’s Level.” Id. at

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§ 3084.5.

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C.

Discussion
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Allegations in Plaintiff’s First Amended Complaint

The events alleged in the First Amended Complaint occurred while Plaintiff was housed at

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Kern Valley State Prison (“KVSP”). Plaintiff alleges that on June 23, 2010, he limped to the KVSP

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C-Facility medical department and requested a walking cane or crutches for his recently injured knee.

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(ECF No. 17, ¶ 10.) His request was denied and, while leaving the medical department, Plaintiff

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reinjured his knee and could not apply weight to his leg. (Id. at ¶ 12.) Plaintiff was then assisted into

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a wheelchair by Defendants Rodriguez and Northcutt and told that he would be pushed back to his

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assigned cell. (Id. at ¶ 13.) Once in the wheelchair, Plaintiff noticed that it did not have leg extensions

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or leg rests. When Plaintiff voiced this fact, the officers told him that if he did not like the chair, then

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he could limp back. Plaintiff remained in the wheelchair. (Id. at ¶ 14.) Defendants Rodriguez and

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Northcutt began pushing the wheelchair. As it was moving forward, Plaintiff’s injured leg jarred into

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the ground. Plaintiff stood up and began moving away. (Id. at ¶ 15.) When Plaintiff was a few yards

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away, Defendants Rodriguez and Northcutt grabbed Plaintiff, slammed him onto the ground, and put

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their body weight on his back and head. (Id. at ¶ 16-18.) Defendant Howard grabbed Plaintiff’s legs

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and began twisting them, pinning them to his back. (Id. at ¶ 19.) Defendants then handcuffed and

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hogtied Plaintiff to a gurney. (Id. at ¶ 20.)
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Exhaustion of Eighth Amendment Claim
a.

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Relevant Appeals

Defendants explain that CDCR organizes inmate appeals that allege the misuse of force under

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the category of “Staff Complaints.” (ECF No. 29-2, Declaration of DaViega (“DaViega Dec.”) ¶ 5;

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Declaration of Lozano (“Lozano Dec.”) ¶ 4.) According to CDCR records, Plaintiff submitted only

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two inmate appeals that were categorized as Staff Complaints between June 23, 2010, when the

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The regulations were amended in 2011.

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alleged incident occurred, and December 30, 2011, when Plaintiff initiated this action. (ECF No. 29-

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2, DaViega Dec. ¶¶ 4-5; Lozano Dec. ¶¶ 3-4.) In the first appeal, designated as KVSP-10-01346,

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Plaintiff alleged that Correctional Officer G. Stailey made a derogatory statement toward him and

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struck him with a closed fist on June 24, 2010. (ECF No. 29-2, DaViega Dec. ¶ 5 and Ex. A; Lozano

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Dec. ¶ 4 and Ex. A.) In the second appeal, designated as KVSP-11-01367, Plaintiff alleged that

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Correctional Officer Escobedo struck his face with a closed fist on February 10, 2011. (ECF No. 29-2,

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DaViega Dec. ¶ 5 and Ex. B; Lozano Dec. ¶ 4 and Ex. B.) Neither of these appeals concerns the

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alleged incident of June 23, 2010, or Defendants Rodriguez, Northcutt or Howard.

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b.

Discussion

Defendants argue that Plaintiff did not submit an administrative appeal at any level of

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review regarding the allegations in this action at any point between the alleged incident and the filing

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of this action. (ECF No. 29-2, DaViega Dec. ¶¶ 4-5 and Exs. A and B; Lozano Dec. ¶¶ 3-4 and Exs. A

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and B.) Defendants also argue that Plaintiff acknowledges in his first amended complaint that he

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failed to exhaust CDCR’s administrative appeal process and states that his appeal “was either

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inadvertently misplaced or intentionally delayed by administration and/or custody” and “inaccurately

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screened out.” (ECF No. 17, ¶ 24.) Defendants further contend that Plaintiff did not take reasonable

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and appropriate steps to administratively exhaust his claim.

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Plaintiff counters that he attempted to submit an administrative appeal regarding the allegations

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of excessive force multiple times in a “timely manner” and within the time constraints through both

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institutional mail in the suicide watch facility and institutional mail in Administrative Segregation.

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Plaintiff’s argument that he submitted a timely appeal is not supported by his exhibits.

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Plaintiff’s opposition contains two appeals regarding the alleged incident. The first appeal was signed

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by Plaintiff on June 24, 2010, and the second appeal was signed by him on July 3, 2010. (ECF No. 31,

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Ex. A.) Although Plaintiff claims that he submitted the appeals in a timely manner, he does not

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identify when the appeals were actually submitted. Upon review, the June 24, 2010 appeal contains an

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illegible KVSP date stamp, but includes a hand-written notation dated August 13, 2010, which states

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“Referred for s/c determination/Rejected.” (ECF No. 31, Ex. A.) Additional exhibits submitted by

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Plaintiff indicate that the June 24, 2010 appeal was rejected for a violation of time constraints and was
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reportedly rejected and returned to Plaintiff on August 16, 2010. (ECF No. 31, Ex. C.) That

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Plaintiff’s appeal was submitted in August 2010 and rejected at that time is consistent with the August

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13, 2010 handwritten notation on the appeal. In other words, it appears that Plaintiff’s June 24, 2010

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appeal was not submitted in a “timely manner” and was properly rejected by KVSP officials. Tit. 15,

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§ 3084.3(c)(6). With regard to the July 3, 2010 appeal, there is no date stamp or other marking

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indicating that CDCR ever received the appeal. Accordingly, it cannot be considered timely. The

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exhaustion requirement may not be satisfied by filing an untimely or otherwise procedurally defective

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appeal. Woodford v Ngo, 548 U.S. 81, 83-84 (2006) (quotations omitted).

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Insofar as Plaintiff refers the Court to his efforts to “track” his appeals, the cited exhibits do not

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provide any evidence that he submitted a 602 regarding the use of force alleged in this action in a

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timely manner. The exhibits, which are comprised of letters from Plaintiff dated July 20, July 24, and

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August 18, 2010, refer to an excessive force claim 602/appeal, but they do not identify the particular

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incident of excessive force at issue. (ECF No. 31, Ex. B.) In other words, the letters could refer to a

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different excessive force appeal, such as Plaintiff’s appeal claiming that Correctional Officer G.

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Stailey made a derogatory statement toward him and struck him with a closed fist on June 24, 2010.

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Further, the exhibits do not contain any indication of when Plaintiff submitted a 602 appeal regarding

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the incident at issue in this case and the exhibits do not provide evidence that Plaintiff attempted to

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submit the 602 appeal within the time constraints required by regulation.

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Plaintiff next asserts that the administrative appeals office refused to accept and log his

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appeals, and that there is plausible evidence in the record from which to infer “collusion to forestall

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the appeal exhausting requirement” and that his administrative remedies were “somehow obfuscated.”

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(ECF No. 31, pp. 5, 6.) Plaintiff’s argument is not supported by facts or evidence. Rather, his claims

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of collusion are based on mere conjecture and are contradicted by evidence that the KVSP appeals

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office received his June 24, 2010 appeal, but it was rejected for violation of time constraints. His

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claim also is contradicted by evidence that he submitted several other inmate grievances, including

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staff complaints, there were processed by the KVSP appeals office during the relevant time period.

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(ECF No. 29-2, DaViega Dec. ¶¶ 4-5); see Crayton v. Hedgpeth, 2011 WL 1988450, at *7 (E.D. Cal.

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May 20, 2011) (allegation that grievances were lost or destroyed is not sufficient to support the
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inference that plaintiff’s administrative remedies were wrongfully obstructed, particularly when many

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of plaintiff’s grievances were recorded and responded to through the director’s level of review).

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Plaintiff’s references to the investigative reports of his alleged assault on the Defendants and the CDC-

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115 Rules Violation Report against him to suggest collusion are not persuasive. The reports do not

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implicate the processing of his appeal. (ECF No. 31, Ex. D.)

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Plaintiff also argues that his medical problems warrant equitable tolling because he was

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confined to bed due to swelling of lower extremities during the relevant time period. This argument is

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not persuasive. As an initial matter, this argument is contradicted Plaintiff’s assertion that he

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submitted a timely appeal. This argument also is contradicted by record evidence indicating that

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Plaintiff submitted other appeals during the relevant time period. Further, Plaintiff cannot demonstrate

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that the appeals process was unavailable due to his medical condition.

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The PLRA does not require exhaustion when circumstances render administrative remedies

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“effectively unavailable.” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010). Indeed, an inmate

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may be excused from the exhaustion requirement where the inmate took “reasonable and appropriate

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steps to exhaust his claim,” yet was precluded from exhausting through no fault of his own. Nunez v.

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Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010). In this case, there is no evidence that Plaintiff made a

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reasonable, good faith effort to exhaust his excessive force claim but was prevented from doing so

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because of his medical condition. Sapp, 623 F.3d at 823; Nunez, 591 F.3d at 1224. The record does

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not contain any evidence that Plaintiff’s medical condition or confinement to bed prevented him from

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writing. (ECF No. 31, Ex. E.) The record also does not contain evidence that he sought assistance in

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filing a grievance due to his medical condition but was refused help.
Based on the above, the Court finds that Plaintiff has not exhausted his administrative remedies

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and that this action should be dismissed without prejudice

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V.

Conclusion and Order

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Based on the foregoing, IT IS HEREBY ORDERED as follows:

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1. Defendants’ motion to strike Plaintiff’s surreply is GRANTED;

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2. Plaintiffs’ request to file a surreply is DENIED;

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3. Defendants’ motion to dismiss for failure to exhaust administrative remedies is
GRANTED;

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4. This action is DISMISSED without prejudice for failure to exhaust; and

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5. Plaintiff’s request for a sixty-day extension of time is DENIED AS MOOT.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 14, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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