John Caputo v. Scherffenberg

Filing 19

FINDINGS and RECOMMENDATIONS Recommending that Defendant's Rule 12(b)(6) 14 Motion to Dismiss for Failure to Exhaust be Granted; Objections, if any, Due within Thirty Days signed by Magistrate Judge Gary S. Austin on 9/8/2014. Referred to Judge Anthony W. Ishii. Objections to F&R due by 10/14/2014. (Sant Agata, 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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1:13-cv-00415-AWI-GSA-PC

JOHN ANTHONY CAPUTO,

FINDINGS AND RECOMMENDATION,
RECOMMENDING THAT DEFENDANT’S
RULE 12(b)(6) MOTION TO DISMISS FOR
FAILURE TO EXHAUST BE GRANTED
(Doc. 14.)

vs.
DR. SCHERFFENBERG,

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Defendant.

OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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I.

BACKGROUND

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John Anthony Caputo (APlaintiff@) is a former state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the

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Complaint commencing this action on March 21, 2013. (Doc. 1.) This case now proceeds on

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the initial Complaint, against defendant Dr. Sharffenberg (“Defendant”)1 for use of excessive

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force in violation of the Eighth Amendment, and for retaliation in violation of the First

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Amendment. (Id.)

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On April 11, 2014, Defendant 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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Complaint. (Doc. 14.) On June 4, 2014, Plaintiff filed an opposition to the motion. (Doc. 18.)

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Plaintiff spells Defendant’s name as “Scherffenberg” throughout the Complaint; however, Defendant
reports that the correct spelling is “Sharffenberg.” (Memorandum, Doc. 14-1 at 1 fn.1.)
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Defendant did not file a reply to Plaintiff's opposition. Defendant’s motion to dismiss is now

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before the court.

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II.

PLAINTIFF’S ALLEGATIONS

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The events at issue in the Complaint allegedly occurred at the California Substance

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Abuse Treatment Facility in Corcoran, California, when Plaintiff was incarcerated there.

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Defendant Dr. Sharffenberg was an employee of the California Department of Corrections and

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Rehabilitation at the time of the events at issue.

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Plaintiff claims that Dr. Sharffenberg intentionally injured him because he filed an

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inmate grievance. Specifically, Plaintiff alleges that on May 18, 2012, he was summoned to

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the G Yard clinic to speak with Defendant regarding a 602 Plaintiff had filed. Plaintiff alleges

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that “while in a heated argument Dr. Scherffenberg wants to give me a prostate exam. Doing

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so he Dr. Scherffenberg hurts me bad! To this day I bleed, have trouble using rest room, have

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nightmares, etc.” (Complaint, Doc. 1 at 3 ¶IV.)

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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. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014).

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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.

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 CDCR

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Form 602. Id. at ' 3084.2(a)(2012). In 2012, 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.

Id. at ' 3084.8(b)(2012).

Three formal levels of appeal are involved,

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including the first level, second level, and third level. Id. at ' 3084.7(2012). In order to satisfy

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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.

DEFENDANT’S MOTION

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Defendant moves to dismiss this action on the ground that Plaintiff’s failure to exhaust

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the CDCR=s administrative appeals process for Plaintiff’s claims against Defendant is evident

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on the face of the Complaint. Defendant asserts that in the body of the Complaint, Plaintiff

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indicates that an inmate appeal or administrative remedy process is available at his institution.

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(Complaint, Doc. 1 at 2, ¶II-A.) Plaintiff also indicates that he has not filed an appeal or

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grievance concerning all of the facts contained in the Complaint. (Id. at 2 ¶II-B.) Plaintiff

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explains this failure by stating that he was “[r]uning [sic] out of time to file.” (Id.) Lastly,

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Plaintiff indicates that the inmate appeal or administrative remedy process is not completed,

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and again states that he was “[r]unning out of time to file.” (Id. at 2, ¶II-C.)

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Defendant argues that Plaintiff’s awareness of the administrative remedy process and

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his failure to exhaust his administrative remedies are evident on the face of the Complaint

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because Plaintiff attests to these facts. Defendant argues that under these facts, dismissal is

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appropriate, and is in line with the Ninth Circuit’s recent holding in Albino that “in the rare

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event that a failure to exhaust is clear on the face of the complaint, a defendant may move for

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dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166.

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Defendant also argues that Plaintiff’s reasoning for his failure to exhaust, that he was

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“[r]unning out of time,” is legally inadequate. Defendant argues that this explanation cannot

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excuse Plaintiff’s failure to exhaust prior to bringing this action because Plaintiff was still well

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within the statute of limitations for the claims contained in the Complaint at the time of its

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filing on March 21, 2013. Defendant asserts that the statute of limitations for personal injury

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actions arising in California and brought under § 1983 is two years, and Plaintiff is allowed two

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more years as a prisoner for tolling. Cal.Code of Civil Procedure §§ 335.1, 352.1. Defendant

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concludes that the last day on which Plaintiff’s Complaint could be filed was May 18, 2016,

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which is four years from the alleged wrongful act of May 18, 2012 by defendant Sharffenberg

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and more than three years before expiration of the statute of limitations. Defendant concludes

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that therefore Plaintiff was not “running out of time” to file his Complaint.

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Plaintiff’s Opposition

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Plaintiff filed a response to the motion to dismiss. However, he makes no argument

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concerning exhaustion of administrative remedies. Plaintiff merely argues that his Complaint

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and medical records are sufficient to support his claims and to prevent dismissal of his case.

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Discussion

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The court finds that Defendant has met his burden of raising and proving that Plaintiff’s

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failure to exhaust administrative remedies is evident on the face of the Complaint. Defendant

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has shown that Plaintiff indicates in the body of the Complaint that an inmate appeal or

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administrative remedy process is available at his institution, (Complaint, Doc. 1 at 2, ¶II-A.);

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that he has not filed an appeal or grievance concerning all of the facts contained in the

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Complaint, (id. at 2 ¶II-B.); and that he did not complete the appeals process because he was

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“[r]unning out of time to file, (id. at 2, ¶II-C.) Defendant has shown that Plaintiff was not

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running out of time to file this case, establishing that Plaintiff’s lawsuit was subject to a four-

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year statute of limitations, and demonstrating that Plaintiff filed the Complaint more than three

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years before the expiration of time. Plaintiff offers no argument in opposition to Defendant’s
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arguments. Therefore, Defendant is entitled to dismissal of this case based on Plaintiff’s failure

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to exhaust administrative remedies before filing suit.

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V.

CONCLUSION AND RECOMMENDATION

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Based on the foregoing, the court finds that Defendant has met his burden of

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demonstrating that Plaintiff failed to exhaust his administrative remedies prior to filing suit, in

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compliance with ' 1997e(a). Defendant has shown evidence that Plaintiff failed to exhaust his

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remedies by an inmate appeal pursuant to Title 15 of the California Code of Regulations '

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3084.1, et seq., concerning Plaintiff=s allegations in the Complaint against Defendant in this

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action. Plaintiff has not shown that he exhausted all the remedies available to him. Therefore,

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the court finds that Defendant is entitled to dismissal of this action, and Defendant’s motion to

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dismiss should be granted.

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Therefore, IT IS HEREBY RECOMMENDED that Defendant’s Rule 12(b)(6) motion

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to dismiss for failure to exhaust remedies, filed on April 11, 2014, be GRANTED, without

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prejudice.

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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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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 8, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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