Davidson v. Davey et al

Filing 15

FINDINGS and RECOMMENDATIONS Granting the 13 Motion to Dismiss signed by Magistrate Judge Jennifer L. Thurston on 09/26/2013. Referred to Judge O'Neill; Objections to F&R due by 10/15/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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) Case No.: 1:13-cv-00979 – LJO – JLT (PC)
)
Plaintiff,
) FINDING AND RECOMMENDATION
) GRANTING THE MOTION TO DISMISS
v.
)
) (Doc. 13)
DAVEY, et al.,
)
)
Defendants.
)
)
Plaintiff Derald Davidson is a state prisoner proceeding pro se with a civil rights action
DERALD DAVIDSON,

pursuant to 42 U.S.C. § 1983. (Doc. 1-2). On August 28, 2013, Defendant Brown filed his motion to
dismiss for Plaintiff’s failure to exhaust his administrative remedies, for Plaintiff’s failure to state a
claim, and on the grounds of qualified immunity. (Doc. 13). Despite the adequate warning provided
by Defendant pursuant to Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc), Plaintiff
has failed to respond to the motion to dismiss.
Having read and considered the pleadings, and, for the reasons set forth below, the Court

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RECOMMENDS that the complaint be DISMISSED.
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I.

Factual Background
Plaintiff’s claim against Officer Brown arose while he was incarcerated at Kern Valley State
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Prison (“KVSP”) in Delano, California. (Doc. 1-2 at 5).

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“chronic foot problems” and has been prescribed orthopedic shoes to alleviate the pain associated with

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standing and walking. Id. On November 18, 2011, Plaintiff reported to Receiving and Release

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(“R&R”) at KVSP in order to transfer to Deuel Vocational Institute (“DVI”). Id. At the R&R, Officer

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Brown ordered Plaintiff to remove his orthopedic shoes because they were not permitted on the

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transfer bus. Id.

According to Plaintiff, he suffers from

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Plaintiff explained his need for the orthopedic shoes to Officer Brown. (Doc. 1-2 at 5). Officer

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Brown refused to listen, confiscated Plaintiff’s shoes, and failed to provide Plaintiff a receipt for his

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property. Id. Consequently, Plaintiff had to “tip toe to the bus” in order to alleviate his leg pain. Id. at

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5-6. Plaintiff’s shoes were not returned to him.

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II.

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Legal Analysis
A. § 1997(e)(a) of the Prison Litigation Reform Act
Defendant argues that Plaintiff failed to exhaust his administrative remedies regarding

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the claim set forth in his complaint. (Doc. 13-1). Section 1997e(a) of the Prison Litigation Reform Act

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(“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section

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1983 of this title, or any other Federal law, by a prisoner confined in any jail, or other correctional

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facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

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Prisoners are thus required to exhaust all available administrative remedies prior to filing suit. Jones

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v. Bock, 549 U.S. 199, 211 (2007). Exhaustion of administrative remedies is mandatory regardless of

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the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and applies to all

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

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In order to properly exhaust administrative remedies, an inmate must comply with the prison’s

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deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 93 (2006).

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California Department of Corrections and Rehabilitation (“CDCR”) has established an administrative

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grievance system for prisoner complaints. See Cal. Code Regs, tit. 15 § 3084.1 (West 2013). Inmates

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“may appeal any policy, decision, action, condition, or omission” of the CDCR or CDCR personnel

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which has a “material adverse effect upon his or her health, safety, or welfare.” Id. at § 3084.1(a).

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The

The inmate appeal typically proceeds through three levels of review and requires an inmate to
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appeal within the timeframes set forth by the Cal. Code of Regulations. Id. at §§ 3084.7, § 3084.8.

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Inmates initiate an appeal by submitting a CDCR Form 602 or “inmate appeal” to the first level Id. at

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§§ 3084.2(a), 3084.7(a). When prison personnel deny a first level appeal, a prisoner must appeal to

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the second level of review. Id. at § 3084.7(b). The second level must be completed prior to submitting

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a third level review. Id. A third level review generally exhausts a prisoner’s administrative remedies.

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Id. at § 3084.7(c). All appeals must be submitted to the appropriate level within 30 calendar days of

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either: “(1) [t] he occurrence of the event or decision being appealed, (2) [u]pon first having

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knowledge of the action or decision being appealed, or; (3) [u]pon receiving an unsatisfactory

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departmental response to an appeal filed.” Id. at 3084.8(b).

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The exhaustion requirement is not jurisdictional, but rather creates an affirmative defense that a

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defendant may raise in a non-enumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1117-

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19 (9th Cir. 2003). The defendant bears the burden of raising and proving the absence of exhaustion.

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Id. at 1119. In deciding the motion, “the court may look beyond the pleadings and decide disputed

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issues of fact.” Id. If the court concludes that the prisoner has not exhausted all of his available

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administrative remedies, “the proper remedy is dismissal of the claim without prejudice.” Id. at 1120.

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If a complaint contains exhausted and unexhausted claims, “the court proceeds with the good and

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leaves the bad.” Jones, 549 U.S. at 221.

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A review of the record indicates that Plaintiff failed to exhaust his administrative remedies.

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Defendant avers that Plaintiff filed two inmate appeals regarding the confiscation of Plaintiff’s shoes

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which were both screened out before reaching a final decision at the third level. (Docs. 13-2 at 3, 6;

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13-3 at 2). Specifically, prison personnel screened out Institutional Log No. KVSP-11-01508 (“Log.

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No. 1508”) on May 31, 2012, and screened out Institutional Log No. KVSP-12-02543 (“Log. No.

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2543”) on October 1, 2012. Id. Each grievance is addressed as follows:

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1. Institutional Log No. KVSP-11-01508

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Plaintiff filed an inmate grievance upon his arrival at DVI on December 11, 2011, which was

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assigned Log. No. 1508. (Docs. 13-3 at 12; 1-2 at 6). Plaintiff requested the return of his orthopedic

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shoes or, in the alternative, that the CDCR reimburse him for their cost. (Doc. 13-3 at 12).1 Sgt. Jones

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and Associate Warden Pfeiffer granted the appeal at the first level. (Doc. 1-2 at 6). However, on

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February 23, 2012, Plaintiff submitted an appeal to the Second Level because the first level review

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“did not describe the method of reimbursement [] for his shoes.” (Docs. 13-3 at 13; 1-2 at 7).

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In response, on March 9, 2012, officials at the Second Level issued a “Modification Order”

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which noted that Plaintiff’s appeal was granted but noted that the order lacked any specified method

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for compensating Plaintiff for the loss of the shoes. (Docs. 13-3 at 17; 1-2 at 32). The Second Level

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remanded the appeal and ordered the First Level to determine whether Plaintiff had established proof

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of ownership of orthopedic shoes, whether he was in possession of the shoes at the time of the alleged

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event, and whether Plaintiff established that prison officials had been negligent in handling his

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property. (Doc. 1-2 at 32).
On March 28, 2012, the First Level reversed its prior favorable decision toward the Plaintiff.

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The First Level determined that Plaintiff’s tennis shoes were not medically

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(Doc. 1-2 at 21).

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authorized and that Plaintiff failed to demonstrate ownership of the shoes. (Docs. 13-3 at 15; 1-2 at 22,

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32). Prison personnel delivered notice of the decision to Plaintiff on March 30, 2012. (Doc. 13-3 at

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22).

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Before April 24, 2012, Plaintiff appealed this reversal but submitted his appeal to the Third

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Level, rather than the Second Level. (Doc. 1-2 at 32). As a result, on May 31, 2012, Chief of Inmate

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Appeals Lozano canceled Plaintiff’s appeal. Id. Subsequently, on June 19, 2012, Plaintiff resubmitted

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the appeal to the Second Level. (Doc. 13-3 at 22; Doc. 1-2 at 32). However, prison officials canceled

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his appeal the following day because his submission exceeded the time limits permitted. (Docs. 13-3 at

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22; 1-2 at 32). Prison officials noted that “YOUR FIRST LEVEL RESPONSE WAS RETURNED

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TO YOU ON 3/30/13. YOU HAD ONLY 30 DAYS TO FORWARD YOUR APPEAL FOR A

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SECOND LEVEL RESPONSE IF DISSATISFIED.” (Doc. 13-3 at 22) (emphasis in original).

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As noted above, Cal. Code Regs, tit. 15 § 3084.8(b) required Plaintiff to appeal the modified

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First Level decision to the Second Level within 30 days of first having knowledge of the decision. See

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Defendant does not object to the substantive content of Plaintiff’s inmate grievance.

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also Cal. Code Regs, tit. 15 § 3084.7(b). Plaintiff instead elected to bypass the Second Level of

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review when appealing the modified First Level decision. (Doc. 1-2 at 25).2

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exhaustion may occur prior to an appeal to the Third Level, however, no such exception presents itself

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here. See e.g., Sapp v. Kimbrell, 623 F.3d 813 (9th Cir. 2010) (Discussing that an improper screening

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may excuse an inmate’s failure to satisfy the exhaustion requirement). Given Plaintiff’s failure to

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comply with the statutory requirements of the inmate grievance procedure, the Court finds that

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Plaintiff failed to exhaust his administrative remedies with regard to Log No. 1508.

In some instances

2. Institutional Log No. KVSP-12-02543.

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Defendants argue that Log No. 2543 should be dismissed because it contained procedural

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defects. (Doc. 13-1 at 8). Specifically, Defendants aver that Plaintiff failed to file an appeal to the

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Third Level within the allotted timeframe. The Court agrees.

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As required, Plaintiff appealed the cancellation of Log. No. 1508 on July 2, 2012, which was

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assigned Log. No. 2543. (Doc. 13-3 at 24); Cal.Code Reg., tit. 15, §§ 3084.6(e) (An inmate may

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separately appeal the cancellation of his appeal, but cannot appeal the substantive merits of his initial

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claim). Prison personnel bypassed the First Level of the appeal. (Doc. 1-2 at 26). In a Second Level

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decision dated August 6, 2012, the Chief Deputy Warden of KVSP analyzed Log. No. 1508 at length.

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(Doc. 1-2 at 31-33). The Warden concluded that the Plaintiff previously failed to follow procedure.

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Id. at 33.

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Both the Warden and the CDCR Form 602 advised Plaintiff that he must appeal his Second

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Level response to the Third Level Review within 30 days of receipt of the decision if he was

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unsatisfied with the Warden’s decision. (Doc. 1-2 at 27, 33). According to records presented by the

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Plaintiff, the decision was delivered or mailed to him on August 9, 2012. Id. at 27. However, he did

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not submit his appeal to the Third Level until September 17, 2012, which was more than 30 days after

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it was mailed or delivered to him. Id.

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Exactly why Plaintiff failed to timely appeal the Second Level decision is unexplained. Given

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In his complaint, Plaintiff suggests that an appeals officer “fabricated an (sic) illegal STATE DOCUMENT” in
permitting an amendment to the original First Level Decision. (Doc. 1-2 at 6-7, 23-24) (emphasis in original). However,
Cal. Code Regs, tit. 15 § 3084.6 permits the next level of review to modify a prior level’s decision. Thus, his claim is
without merit.

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that Log. No. 2543 arose because of Plaintiff’s failure to timely appeal Log. No. 1508, Plaintiff was

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clearly aware of the need to timely appeal any decision. As such, the Court finds that Plaintiff failed

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to exhaust his administrative remedies under the PLRA. Thus, the Court RECOMMENDS that the

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claim be DISMISSED. 3
FINDINGS AND RECOMMENDATIONS

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Accordingly, and for the aforementioned reasons, the Magistrate Judge RECOMMENDS that

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Defendant’s motion to dismiss for failure to exhaust (Doc. 13) be GRANTED.

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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 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within 14 days

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after being served with these findings and recommendations, Plaintiff may file written

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objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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IT IS SO ORDERED.

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Dated:

September 26, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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In light of this determination, the Court does not consider the other arguments made in the motion.

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