(PC) Cruz v. Kibler et al
Filing
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FINDINGS and RECOMMENDATIONS to dismiss action for failure to exhaust administrative remedies signed by Magistrate Judge Sheila K. Oberto on 2/16/2021. Referred to Judge NONE; Objections to F&R due within 14-Days. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GUILLERMO TRUJILLO CRUZ,
Plaintiff,
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v.
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B. KIBLER, et al.,
Case No. 1:20-cv-01740-NONE-SKO (PC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION FOR FAILURE TO
EXHAUST ADMINISTRATIVE REMEDIES
14-DAY DEADLINE
Defendants.
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Plaintiff Guillermo Trujillo Cruz, a state prisoner proceeding pro se, initiated this action
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on December 10, 2020. (Doc. 1.) Plaintiff alleges that Defendants failed to protect him from an
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attack by another inmate on November 14, 2020. (Id. at 3, 5, 6.) Plaintiff’s complaint is dated
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November 20, 2020—only six days after the subject incident. (Id. at 7.) Given this short
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timeframe, Plaintiff did not appear to have exhausted his administrative remedies prior to filing
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suit.
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Therefore, on January 25, 2021, the Court issued an order to show cause why this action
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should not be dismissed for failure to exhaust. (Doc. 11.) Plaintiff filed a response to the order to
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show cause on February 11, 2021. (Doc. 13.) Plaintiff does not deny that he failed to exhaust. He
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instead contends that this action should not be dismissed because the California Department of
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Corrections and Rehabilitation (CDCR) has “failed to properly process all [grievances] from June
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2019.” (Id.) The Court finds Plaintiff’s argument unavailing. For the reasons set forth below, the
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Court recommends that this action be dismissed.
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I.
LEGAL STANDARD
The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with
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respect to prison conditions under … any … 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
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exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and
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“unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation
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omitted). Inmates are required to “complete the administrative review process in accordance with
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the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal
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court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies to all
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inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the
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relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S.
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731, 741 (2001).
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Generally, failure to exhaust is an affirmative defense that the defendant must plead and
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prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to exhaust is
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clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).
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II.
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DISCUSSION
It is clear on the face of his complaint that Plaintiff failed to exhaust administrative
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remedies prior to filing suit. Plaintiff nevertheless contends that this action should not be
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dismissed because CDCR has “failed to properly process all [grievances] from June 2019.” (Doc.
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13 at 9.) It is unclear what Plaintiff means by “failed to properly process,” but it is clear that he
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does not mean that CDCR failed to respond to his grievances. Attached to his complaint are
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responses from the CDCR Office of Appeals to two of Plaintiff’s prior grievances. (Doc. 1 at 12,
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27.) CDCR affirmed the cancellation of one grievance in May of 2020, and it constructively
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denied the other due to time constraints in April of 2020. (Id.) Plaintiff exhausted the claims
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underlying the latter grievance.
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The Supreme Court has outlined an exception to the exhaustion requirement where
administrative remedies are “unavailable.” Ross v. Blake, 136 S. Ct. at 1858-60. To be
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“unavailable,” the administrative process must (1) operate as a “simple dead end,” (2) be so
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“opaque” as to be “incapable of use,” or (3) be thwarted by “prison administrators … through
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machination, misrepresentation, or intimidations.” Id. at 1859-60. Plaintiff neither shows, nor
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suggests that either of these situations apply. Rather, his claim that CDCR has “failed to properly
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process” his grievances, coupled with examples where CDCR cancelled or denied his grievances,
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suggests that he complains of the fact that his prior grievances were not granted. However, the
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Supreme Court has not recognized a “futility” exception to the exhaustion requirement. Booth,
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532 U.S. at 741 n.6.
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As long as an administrative remedy was available, Plaintiff was required to exhaust it
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prior to filing suit. Because he failed to do so with respect to the claims underlying this action,
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Plaintiff may not pursue this action. Even if he has raised claims that are serious and would
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otherwise entitle him to relief, “exhaustion is mandatory under the PLRA and … unexhausted
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claims cannot be brought in court.” Jones, 549 U.S. at 211.
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III.
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CONCLUSION AND RECOMMENDATION
Plaintiff failed to exhaust his administrative remedies prior to initiating this action.
Accordingly, the Court RECOMMENDS that this action be DISMISSED without prejudice.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of
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service of these Findings and Recommendations, Plaintiff may file written objections with the
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Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and
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Recommendations.” Failure to file objections within the specified time may result in waiver of his
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rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.
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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
February 16, 2021
/s/
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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