Dixon v. Triesch et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Defendant's Motion to Dismiss 21 , signed by Magistrate Judge Dennis L. Beck on 12/17/13. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TRADELL M. DIXON,
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Plaintiff,
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v.
C. TRIESCH,
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Defendant.
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Case No.: 1:12cv01449 LJO DLB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANT’S MOTION TO
DISMISS
(Document 21)
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Plaintiff Tradell M. Dixon (“Plaintiff”), a former state prisoner proceeding pro se and in forma
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pauperis, filed this civil rights action on August 27, 2012. The action is proceeding against Defendant
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C. Triesch for deliberate indifference to a serious medical need in violation of the Eighth Amendment.
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All other claims and Defendants have been dismissed.
On September 17, 2013, Defendant filed an unenumerated Rule 12(b) Motion to Dismiss based
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on exhaustion. Plaintiff filed his opposition on October 11, 2013, and Defendant filed her reply on
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October 18, 2013. The motion is deemed submitted pursuant to Local Rule 230(l).
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A.
LEGAL STANDARD
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Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with
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respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined
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in any jail, prison, or other correctional facility until such administrative remedies as are available are
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exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative
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remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 (2007); McKinney v.
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Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief
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sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S.
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731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all suits relating to prison
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life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002). An administrative grievance must
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alert the prison to the nature of the wrong for which redress is sought. Griffin v. Arpaio, 557 F.3d
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1117, 1120 (9th Cir. 2009).
The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under
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which the defendants have the burden of raising and proving the absence of exhaustion. Jones, 549
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U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust is subject
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to an unenumerated Rule 12(b) motion, and in resolving the motion, the Court may look beyond the
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pleadings and decide disputed issues of fact. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012);
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Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010); Wyatt, 315 F.3d at 1119-20. If the Court
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concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice. Jones,
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549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
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B.
APPEALS PROCESS
The California Department of Corrections and Rehabilitation has an administrative grievance
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system for prisoners to appeal any departmental decision, action, condition, or policy having an
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adverse effect on prisoners’ welfare. Cal. Code Regs. tit. 15, § 3084.1. During the relevant times, a
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prisoner must proceed through an initial informal level and three formal levels of review, culminating
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in a third-level decision. Cal. Code Regs. tit. 15, § 3084.5. In order to satisfy section 1997e(a),
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California state prisoners are required to use this process to exhaust their claims prior to filing suit.
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Woodford v. Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378 (2006); McKinney, 311 F.3d at 1199-1201.
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C.
On July 7, 2010, at approximately 10:45 a.m., Plaintiff was admitted to KVSP Facility B
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PLAINTIFF’S ALLEGATIONS1
Medical after he was assaulted. Plaintiff was soaked with pepper spray and had deep cuts on his left
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Only the allegations against Defendant Triesch remain relevant to this action.
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hand, lower back and both knees, and had two black eyes. He alleges that he was forced to stand
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naked in a holding cell from 10:45 a.m. to 1:00 p.m., in front of numerous inmates, female medical
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staff and correctional staff members. The pepper spray was burning his open wounds and genitals.
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Staff members laughed at his suffering and provided no medical treatment.
At around 1:15 p.m., a full scale riot broke out involving at least 100 inmates. At about 1:30
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p.m., Plaintiff was informed that staff needed room in Medical and that they would have to get
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Plaintiff out. Defendant Triesch then “hastily” cleared Plaintiff to be sent back to the yard, without
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medical treatment. Plaintiff received a pair of ill-fitting boxer shorts and was cuffed and escorted,
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bare-footed, over 200 yards on 96 degree pavement.
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D.
DISCUSSION
Defendant’s motion is based on her contention that although Plaintiff filed three exhausted
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grievances between the date of the incident and the filing of this action, these grievances did not relate
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to her medical care rendered on July 7, 2010. Seaman Decl. ¶ 6; Lozano Decl. ¶ 6; Zamora Decl. ¶ 5;
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Farquhar Decl. ¶ 5.
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Plaintiff does not dispute this fact. Rather, he argues that (1) the appeals process was not
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available to him; and (2) the exhaustion requirement does not apply to him because he is a former
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prisoner.
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1.
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The failure to exhaust may be excused where the administrative remedies are rendered
Whether Administrative Remedies Were Available to Plaintiff
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“unavailable,” but Plaintiff bears the burden of demonstrating that the grievance process was
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unavailable to him through no fault of his own. Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th Cir.
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2010); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010); Brown v. Valoff, 422 F.3d 926, 939-40
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(9th Cir. 2005).
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Plaintiff argues that pursuant to applicable regulations, he was permitted to file only one appeal
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every fourteen calendar days. Cal. Code Regs. tit. 15, § 3084.4(a). In support of his argument,
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Plaintiff states that he filed an appeal related to the underlying incident on August 10, 2010, and that
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by operation of law, he was precluded from filing another appeal for fourteen days. Plaintiff
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concludes, “[b]ecause the 10 day filing requirement fell within the 14 day prohibition of filing appeals;
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there was no available administrative exhaustion remedy relating to this defendant.” Opp. 6.
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Plaintiff’s argument is without merit. The incident at issue occurred on July 7, 2010. Under
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regulations applicable at the time, Plaintiff had fifteen days from the date of the incident within which
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to file his administrative grievance. However, he did not file any appeals during the fourteen day time
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period. The Court notes that although Plaintiff states that he filed an appeal on August 10, 2010, the
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declarations submitted in support of Defendant’s motion demonstrate that he did not file any appeal
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until August 25, 2010. Farquhar Decl. ¶ 5, Ex. B.
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This is a distinction without a difference, however, because the fact remains that the incident at
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issue occurred on July 7, 2010, and Plaintiff did not file an appeal within the requisite time frame. His
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argument contending that the time period for filing expired during the pendency of another appeal is
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simply incorrect.
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2.
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Individuals who are prisoners at the time they file suit must comply with the exhaustion
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Applicability of PLRA to Plaintiff
requirements of 42 U.S.C. § 1997e(a). Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009).
Plaintiff is correct that an individual who files an action, and who is not a “prisoner” as defined
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by 42 U.S.C. § 1997e(h) at the time the action is filed, is not governed by the requirements of the
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PLRA. Indeed, the case law that Plaintiff cites in support of his argument sets forth this principle.
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Plaintiff fails to acknowledge, however, that he was a prisoner at the time he filed this action.
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According to his complaint, filed on August 27, 2012, Plaintiff was incarcerated at High Desert State
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Prison in Susanville, California. He states that he “is a prisoner serving a twelve (12) year sentence in
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the custody and care of” CDCR. Compl. 3. The verification indicates that Plaintiff signed the
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complaint, under penalty of perjury, in Susanville, California. The proof of service also indicates that
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the complaint was mailed from High Desert State Prison.
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Plaintiff filed his notice of change of address on November 28, 2012. According to the notice,
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Plaintiff’s address changed from High Desert State Prison to an address in Los Angeles. However,
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even at the time he signed the notice, November 25, 2012, Plaintiff used his address at High Desert
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State Prison and his CDCR inmate number in the upper left hand corner of the pleading. The attached
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proof of service states that at the time of service, Plaintiff was incarcerated at High Desert State Prison
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and mailed the notice by handing it to institutional staff for mailing. Therefore, at least until
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November 25, 2012, Plaintiff was still incarcerated.
Plaintiff’s argument is therefore without merit. Although he was eventually released, he was a
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prisoner at the time the complaint was filed and was subject to the exhaustion requirements.
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E.
CONCLUSION AND RECOMMENDATION
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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Defendant’s Motion to Dismiss, filed September 17, 2013, be GRANTED; and
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This action be DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to exhaust.
These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days
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after being served with these Findings and Recommendations, the parties may file written objections
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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” A party may respond to another party’s objections by filing a response within
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fourteen (14) days after being served with a copy of that party’s objections. The parties are advised
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that failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
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/s/ Dennis
December 17, 2013
UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:
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L. Beck
3b142a
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