Torres v. Waddel

Filing 44

ORDER Adopting Findings and Recommendations 42 and Granting Defendants' Motion to Dismiss for Failure to Exhaust Remedies 28 , signed by District Judge Dale A. Drozd on 11/7/16. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GUSTAVO TORRES,

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Plaintiff,

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v.

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BURKETT, et al.,

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No. 1:14-cv-01217-DAD-BAM (PC)

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFENDANTS’ MOTION TO DISMISS FOR
FAILURE TO EXHAUST REMEDIES
Defendants.
(Doc. Nos. 28, 39, 42)

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Plaintiff Gustavo Torres is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 14, 2015, defendants filed a motion to dismiss. (Doc. No. 28.) On

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September 2, 2016, the assigned magistrate judge filed findings and recommendations

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recommending that defendants’ motion to dismiss be granted due to plaintiff’s failure to exhaust

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his administrative remedies prior to filing suit as required. (Doc. No. 42.) In their motion,

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defendants argued that on the face of plaintiff’s complaint it was clear that he had failed to

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comply with the thirty-day time limit to submit a valid inmate appeal concerning the incidents

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complained of in this civil rights action. The assigned magistrate judge agreed and recommended

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dismissal. The findings and recommendations were served on the parties and contained notice
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that objections thereto were to be filed within fourteen days. (Id.)
On September 16, 2016, plaintiff timely filed objections to the findings and

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recommendations. (Doc. No. 43). In his objections plaintiff concedes that his inmate appeals

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concerning the incidents in question were untimely filed. (Id. at 1-2.) Nevertheless, he contends

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that administrative remedies were not available to him because prison officials did not respond to

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his untimely inmate appeals. The failure by prison officials to respond to an appeal or grievance

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may excuse a prisoner from fully exhausting his administrative remedies, when the inmate appeal

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or grievance was properly filed. See, e.g., Boyd v. Corr. Corp. of Am., 380 F.3d 989, 996 (6th

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Cir. 2004); see also Marella v.Terhune, 568 F.3d 1024, 1028 (9th Cir. 2010) (“If a prisoner had

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full opportunity and ability to file a grievance timely, but failed to do so, he has not properly

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exhausted his administrative remedies.”); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999) (“A

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prisoner’s administrative remedies are deemed exhausted when a valid grievance has been filed

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and the state’s time for responding thereto has expired.”) (emphasis added); Dominguez v. Rojas,

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No. CV 03-0195 DSF (AJW), 2011 WL 8614834, at *7 (C.D. Cal. Nov. 3, 2011) (“Because no

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exception to the timely filing requirement applies, it is immaterial that plaintiff never received a

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response to his inmate appeal.”) Here, however, plaintiff concedes that whatever inmate appeals

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he filed were untimely. Moreover, plaintiff has not alleged or made any showing that this

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untimely filing of his inmate appeal was not his fault or that his inmate appeals were otherwise

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properly made. (See Doc. No. 43 at 4.)

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Plaintiff also asserts that because he is not an attorney, he was “bound to make mistakes

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along the process” and that these were “honest mistakes.” (Doc. No. 43 at 4.) That plaintiff may

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have made an “honest mistake” in belatedly filing his inmate appeals does not establish that

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administrative remedies were unavailable to him. Moreover, that circumstance does not show

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that prison staff affirmatively interfered with plaintiff’s ability to exhaust his administrative

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remedies, or that those remedies were unknowable despite his good faith effort to become

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informed. “Plaintiff’s subjective unawareness is not enough to excuse exhaustion.” Passineau v.

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Oxborrow, No. 1:12-cv-01894-LJO, 2014 WL 7409103, at *9 (E.D. Cal. Dec. 30, 2014) (citing

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Albino v. Baca, 697 F.3d 1023, 1035 (9th Cir. 2012)).
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Defendants have carried their burden of establishing that plaintiff failed to exhaust his

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administrative remedies prior to filing suit as required. Plaintiff has not shown that such

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administrative remedies were unavailable to him. Therefore, this action must be dismissed,

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without prejudice, due to plaintiff’s failure to exhaust his administrative remedies before filing

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this action.

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Accordingly:

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1. The September 2, 2016 findings and recommendations (Doc. No. 42) are adopted in

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full;
2. Defendants’ motion to dismiss due to plaintiff’s failure to exhaust his administrative

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remedies prior to filing suit as required (Doc. No. 28) is granted;
3. This action is dismissed, without prejudice, due to plaintiff’s failure to exhaust his

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administrative remedies before filing suit;
4. All other pending motions (Doc. No. 39) are denied as having been rendered moot by

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this order; and
5. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
Dated:

November 7, 2016
UNITED STATES DISTRICT JUDGE

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