Rupe v. Cate et al

Filing 157

ORDER signed by Senior Judge Edward F. Shea on 6/3/13 GRANTING in part and DENYING in part 128 and 151 Motions to Dismiss. C. Fortson, A. Omeira, J. Sebok, Bowen and B.M. Cash terminated. (Manzer, C)

1
2
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION

7
8
9

No.

PAUL ANTHONY RUPE,
Plaintiff,

10

13
14

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTIONS TO DISMISS

v.

11
12

CV-08-2454-EFS (PC)

JEFFREY BEARD, in his official
capacity as Secretary of the
California Department of
Corrections and Rehabilitation,
et al.,
Defendants.

15
16

I.

17
18

INTRODUCTION

Before the Court, without oral argument, is Defendants Martinez,

19

Jackson,

20

Motion

21

dismissal

22

including qualified immunity, failure to comply with the statute of

23

limitations,

24

granted.

25

Sebok, Omeira, Bowen, Bradford, Beuchter, and Rushing’s (collectively,

26

the “Cash Defendants”) Motion to Dismiss, ECF No. 151.

and

to

Williams’s

Dismiss,
of

ECF

Plaintiff’s

and

failure

(collectively,
No.

128.

claims

state

The

against

a

claim

the

“Martinez

Martinez
them

upon

on

Defendants”)

Defendants
several

which

seek

grounds,

relief

can

be

Also pending before the Court is Defendants Cash, Fortson,

The Cash

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 1

1

Defendants seek dismissal of Plaintiff’s claims against them based on

2

Plaintiff’s failure to administratively exhaust those claims prior to

3

asserting them in this lawsuit.

4

Nos. 132 & 153.

5

the

6

authority, the Court is fully informed.

7

below, the Court grants in part and denies in part each motion.

record

in

this

matter,

and

II.
A.

having

consulted

the

applicable

For the reasons set forth

BACKGROUND

Factual History1
Plaintiff,

10

ECF

Having reviewed the submissions of the parties and

8
9

Plaintiff opposes both motions.

an

incarcerated

inmate

in

the

custody

of

the

11

California Department of Corrections and Rehabilitation (“CDCR”), is a

12

practicing Druid.

13

neo-pagan

religion

14

druids

the

15

Plaintiff has communicated with the Order of Bards, Ovates, and Druids

16

(“OBOD”),

17

obtained correspondence courses to aid his spiritual development.

18

¶¶ 50-51.

19

to Druidry, and he has written articles and attained various titles

20

and honorifics within his chosen religious order.

21

Plaintiff’s sincerely held religious belief.

—

a

Second Am. Compl., ECF No. 101, ¶ 4.
that

religious

Druid

revives
and

the

beliefs

educational

organization

based

and

leaders

in

Druidry is a

practices
in

England,

of

ancient

from

the

Gaul.

which

he
Id.

He has completed several OBOD educational courses related

Id.

Druidry is

Id.

22
23

1

In summarizing this case’s factual history and deciding these motions to
dismiss, the Court construes the pleadings in the light most favorable

24
to the Plaintiff and accepts as true all material, well-pled factual

25
26

allegations

in

the

Second

Amended

Complaint,

reasonable inferences drawn therefrom.

ECF

No.

101,

and

all

See Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 2

Plaintiff

1

voluntarily

associated

with

members

of

other

Pagan

2

denominations while incarcerated at Mule Creek State Prison (“MCSP”).

3

Id.

other

Pagans,

4

Plaintiff became concerned that he too would be victimized.

Id. ¶¶

5

54-55.

6

Romero,

7

worship.

8

Subia, the MCSP warden.

9

administrative grievance with MCSP officials in which he requested

¶

50.

After

prison

officials

began

harassing

On March 17, 2007, he wrote to California State Senator Gloria
requesting
Id. ¶ 55.

various

items

necessary

for

Pagan

religious

A copy of the letter was given to Defendant
Id.

On the same day, Plaintiff filed an

10

accommodations for Pagan worship.

11

on Plaintiff’s grievance on April 2, 2007.

12

Defendant Long — an associate MCSP warden — informed Plaintiff that

13

MCSP would approve the Pagan group's practices and would grant them a

14

worship area.

15

was too small to accommodate all the Pagan worshipers, Long told

16

Plaintiff to reduce the number of Pagan practitioners.

17

sent another letter to several state senators in which he described

18

how the MCSP failed to accommodate Pagan worship.

19

unspecified MCSP employees allegedly intercepted this letter.

20

Following

Id.

his

Id.

MCSP officials held a hearing
Id. ¶ 56.

At the hearing,

When Plaintiff complained that the proposed area

efforts

to

seek

redress

Id.

Plaintiff

Id. ¶ 57.

for

his

Certain
Id.

grievances,

21

Plaintiff alleges he began to experience retaliatory acts by prison

22

officials.

23

repeatedly strip-searched him, ransacked his cell indiscriminately,

24

and stole or destroyed his personal and religious property.

25

58-59.

26

for complaining about the adverse actions he suffered.

Plaintiff states that various corrections officers at MCSP

Id. ¶¶

Plaintiff states he was placed in administrative segregation
Id. ¶ 62.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 3

1

Additionally, Plaintiff asserts he was penalized with lengthy yard and

2

phone restrictions, without being told what violation he committed.

3

Id. ¶ 66.

4

“lock all Pagan[s] up.”

Id. ¶ 67.

Defendants B. Bueno and Green

5

purportedly

non-Wiccans

off

6

effectively barring Druids from practicing their faith.

7

Plaintiff

8

restrictions

9

during his administrative appeals.

Defendant Kudlata allegedly told Plaintiff he would like to

ordered

states
on

he
his

10

avenues

11

October 16, 2008.

12

for

all

seeking

filed

multiple

religious

redress,

the

Pagan

grievances

practice,

all

of

Id. ¶ 72.

Plaintiff

filed

worship

Id. ¶ 70.

related
which

area,

to

were

the

denied

Absent any further
the

instant

suit

on

Id.

On March 17, 2009, Plaintiff was informed that MCSP personnel

13

had been served with his complaint.

14

retaliatory

15

Martel refusing to provide food for any non-Judeo-Christian religious

16

celebrations.

17

he was being considered for a transfer to the California State Prison

18

in Lancaster (“LAC”).

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transfer on numerous procedural and substantive grounds, he alleges

20

Defendants ignored his objections.

21

was transferred to LAC; Plaintiff alleges this transfer resulted from

22

a conspiracy by certain Defendants to retaliate against him for filing

23

his lawsuit.

24

and

discriminatory

Id. ¶ 77.

Id. ¶ 76.

behavior

Plaintiff alleges that

continued,

with

Defendant

On May 6, 2009, Plaintiff was advised that

Id. ¶ 80.

Although Plaintiff objected to the

Id.

On June 17, 2009, Plaintiff

Id. ¶¶ 82-83.

Plaintiff alleges that he continues to be subject to religious

25

discrimination

26

confiscation

at

of

LAC.

He

alleges

that

certain

of

Plaintiff’s

Defendant

religious

Bowen

items

ordered

upon

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 4

his

1

transfer, refusing to store the items and stating that LAC didn’t

2

“recognize Pagan religion.”

3

prisoner classification at LAC was intentionally delayed for thirty-

4

five days, during which time he was only permitted to leave his cell

5

on one occasion for forty-five minutes of outdoor exercise.

6

Plaintiff also alleges he was subject to cruel and unusual punishment

7

in the form of excessive in-cell incarceration, with minimal time

8

provided for outdoor exercise.

9

strict outdoor-activity restrictions, including a limit of two-to-four

10

hours of outdoor exercise per week, are the means by which Defendants

11

Jackson and Williams — the current LAC warden and facility captain,

12

respectively — impermissibly operate Plaintiff’s unit (“Facility C”)

13

at LAC as a “punishment unit.”

Id. ¶ 84.

Plaintiff asserts that his

Id. ¶ 89.

Id. ¶ 85.

Plaintiff contends that

Id. ¶ 90.

14

Since his transfer to LAC, Plaintiff asserts he has been denied

15

1) access to certain religious educational materials, id. ¶ 91; 2) use

16

of state funds to purchase congregate ceremonial religious items, id.

17

¶ 92; 3) outside areas in which to engage in religious activities, id.

18

¶

19

practitioners,

id.

20

chaplain,

¶

21

practitioners in other buildings, id. ¶ 97; and 8) non-alcoholic wine

22

and

23

candles, id. ¶ 98.

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routinely provided these items, and that by denying him these items,

25

LAC staff have engaged in discriminatory religious practices.

26

//

93;

4)

sufficient

id.

various

other

space

¶

94;

96;

7)

in

5)

ritual

the

objects,

which

to

feasts,

ability

including

to

congregate
id.

¶

95;

communicate

herbs,

with

oils,

6)

other
a

with

incense,

paid
other

and

Plaintiff alleges that other religious groups are

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 5

1

B.

Procedural History
Plaintiff filed his initial Complaint on October 16, 2008, ECF

2
3

No. 1, and the Amended Complaint on July 24, 2009, ECF No. 31.

4

February

5

Defendants’ motion to dismiss.

6

Rupe filed another amended complaint, captioned as the First Amended

7

Complaint (“FAC”), ECF No. 51.2

8

15, 2010.

9

Rupe’s motion for summary judgment, motion for leave to conduct third-

10

1,

2010,

the

Court

ECF No. 68.

granted

in

ECF No. 48.

part

and

On

December

14,

in

part

On February 24, 2010, Mr.

Defendants answered the FAC on June

On October 13, 2011, the Court denied Mr.

party discovery, and motion to compel discovery.

11

denied

On

2011,

Mr.

Rupe

ECF No. 96.

filed

the

now-operative

12

complaint, captioned as the Second Amended Complaint (“SAC”), ECF No.

13

101.

14

The

15

Defendants, whom the Court groups together as follows:

Defendants answered the SAC on February 16, 2012.
SAC

1)

16

asserts

nine

claims

and

names

ECF No. 105.

thirty-eight

individual

Defendant Jeffrey Beard,3 the Secretary of CDCR, in his
official capacity;

17
18
19
2

The pleading captioned “First Amended Complaint” is actually Plaintiff’s

20

second

21

pleading,

amended
which

complaint,
is

and

captioned

his

as

his

subsequent
“Second

actually his third amended complaint.

22

consistent

with

each

filing’s

(and

now

Amended

operative)

Complaint,”

is

To avoid confusion and to be

caption,

the

Court

refers

to

these

complaints as the First Amended Complaint and Second Amended Complaint,

23

respectively.

24
25
26

3

The SAC actually names Michael Cate, the former Secretary of CDCR, as a
Defendant.

SAC ¶ 5.

On March 6, 2013, pursuant to Federal Rule of

Civil Procedure 25(d), the Court substituted the current CDCR Secretary,
Dr. Jeffrey Beard, for Secretary Cate.

ECF No. 149.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 6

1

2)

Defendant

R.J.

Subia,

the

former

MCSP

warden,

in

his

2

individual capacity; and Defendant M. Martel, the current

3

MCSP warden, in both his individual and official capacities

4

(the “MCSP Warden Defendants”);

5

3)

Defendants D. Long, W. Knipp, P. Vanni, G. Machado, R.M.

6

Kudlata, A. Chamberlain, V. Bueno, B. Bueno, A. Green, K.

7

Rutherford,

8

Barham, S. Muhammed, Kuric, Takehari, Lockhart, J. Burkard,

9

H. Lackner, B. Rathjen, M. Bennett, L.B. Reaves, and M.

10

Allen, all of whom are employed as corrections officers or

11

supervisors at MCSP, in their individual capacities (the

12

“MCSP Employee Defendants”);

13

4)

R.

Texeira,

Nakanoto,

L.

a

Martinez,

CDCR

D.

Baptista,

classification

S.

services

representative (“CSR”), in his individual capacity;

14
15

Defendant

J.

5)

Defendant B.M. Cash, the former LAC warden, in both his

16

individual

17

Jackson, the current LAC warden, in his official capacity

18

(“the LAC Warden Defendants”); and

19

6)

and

official

capacities;

and

Defendant

L.

Defendants C. Fortson, D.J. Williams, J. Sebok, A. Omeira,

20

Bowen, K. Bradford, M. Beuchter, and L. Rushing, all of

21

whom are employed as corrections officers or supervisors at

22

LAC,

23

Defendants”).

24
25

in

their

individual

capacities

(the

“LAC

Employee

On January 26, 2012, the Court screened the SAC pursuant to 28
U.S.C. § 1915A.

ECF No. 103.

After partially dismissing several of

26

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 7

1

Plaintiff’s claims for mootness, the Court directed service of the

2

following remaining claims:
1)

3

the First, Second, and Third Claims for injunctive relief
their

refusal to allow Plaintiff to practice his religious faith

6

in violation of the First and Fourteenth Amendments and the

7

Religious

8

(“RLUIPA”), 42 U.S.C. § 2000cc et seq.;
2)

Use

and

and

on

5

Land

Beard

based

against

9

Defendants

Jackson,4

4

Institutionalized

Persons

Act

the Fourth Claim for money damages against certain MCSP and

10

LAC

11

Plaintiff’s religious practices in violation of the First

12

and Fourteenth Amendments and 42 U.S.C. § 1983;
3)

13

Employee

the

Fifth

Defendants,

Claim

16

in violation of the First and Fourteenth Amendments and §

17

1983;
Claim

for

money

LAC

damages

Employee

Defendant

based on attempts to chill Plaintiff’s right to free speech

Sixth

and

against

of

15

the

MCSP

damages

suppression

Nakanoto

4)

certain

money

on

14

18

and

for

based

against

Defendants,

certain

MCSP

19

Employee Defendants, based on denial of Plaintiff’s right

20

to due process in violation of the Fourteenth Amendment and

21

§ 1983;
5)

22

the Seventh Claim for money damages against certain MCSP

23

Employee Defendants, based on unlawful search and seizure

24

and retaliation against Plaintiff for exercise of his free-

25
4

26

These same claims against Defendant Martel were previously dismissed by
the Court when the Court screened the SAC.

See ECF No. 103, at 3.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 8

1

speech

2

Amendments and § 1983;
6)

3

in

violation

of

the

First

and

Fourth

the Eighth Claim for:
a)

4

rights

injunctive relief and money damages against the LAC

5

Warden Defendants and Defendants Cash, Forton, and

6

Sebok,

7

punishment in the form of ongoing denial of adequate

8

outdoor exercise;
b)

9

based

on

infliction

of

cruel

and

unusual

money damages5 against Defendant Nakanoto and certain

10

MCSP Employee Defendants, for transferring Plaintiff

11

to LAC knowing that he would be subject to such cruel

12

and unusual punishment; and
c)

13

injunctive

relief

and

money

damages

against

14

Defendants Bradford, Beuchter, and Rushing, based on

15

infliction

16

form of failing to timely classify and assign work to

17

Plaintiff upon his arrival at LAC, all in violation

18

of the Eighth Amendment and § 1983; and
7)

19

of

cruel

and

unusual

punishment

in

the

the Ninth Claim for money damages against the MCSP Warden

20

Defendants and Defendants Long and Knipp, based on their

21

knowledge of and deliberate indifference to violations of

22

Plaintiff’s

23

Fourteenth Amendments and § 1983.

civil

rights

in

violation

of

the

First

and

24
25
5

26

The injunctive relief aspect of this sub-claim was previously dismissed
by the Court when the Court screened the SAC.

See ECF No. 103, at 3.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 9

1

In addition to the injunctive relief and monetary damages above,

2

Plaintiff also seeks an order transferring him from LAC to MCSP,

3

dismissal

4

creation of an outdoor exercise program at LAC.

of

allegedly

falsified

disciplinary

allegations,

and

SAC at 33.

On August 15, 2012, the Martinez Defendants moved to dismiss

5
6

certain claims Plaintiff asserted against them.

7

March 25, 2013, the Cash Defendants moved to dismiss various other

8

claims.

9

separately below.

ECF No. 151.

ECF No. 128.

On

The Court addresses each dismissal motion

III. THE MARTINEZ DEFENDANTS’ MOTION TO DISMISS

10
11

Complicating matters somewhat, the relief sought by the Martinez

12

Defendants has changed since their initial memorandum in support of

13

the motion was filed.

14

that

15

official capacities only, see SAC ¶¶ 34 & 36, the Martinez Defendants

16

clarify in their reply brief that they seek the following relief:

Plaintiff

1)

17

has

Due in large part to their belated realization

sued

Defendants

Jackson

and

Williams

in

their

dismissal of the Fourth and Fifth Claims against Defendant

18

Martinez6 for failure to exhaust administrative remedies and

19

failure to comply with the statute of limitations;
2)

20

substitution of Defendant Jackson for Defendants Williams,

21

Cash, Fortson, and Sebok, pursuant to Federal Rule of Civil

22

Procedure 25(d), as to the injunctive-relief portion of the

23

Eighth Claim;

24
25
26

6

In

their

reply

memorandum,

the

Martinez

Defendants

withdraw

failure-to-exhaust argument with respect to Defendant Jackson.
Defs.’ Reply, ECF No. 138, at 5-6 n.1.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 10

their

Martinez

3)

1

dismissal of the money-damages portion of the Eighth Claim

2

against

3

Eleventh Amendment; and
4)

4

dismissal

Defendants

of

the

against

Jackson

and

Williams

injunctive-relief

Defendants

Jackson

portion
and

based

of

Williams

on

the

the

Eighth

5

Claim

based

on

6

qualified immunity and Plaintiff’s failure to state a claim.

7

As to Defendant Martinez, Plaintiff contends that he properly

8

exhausted administrative remedies and filed his complaint within the

9

statute

of

limitations.

As

to

Defendants

Jackson

and

Williams,

10

Plaintiff apparently abandons the money-damages portion of his Eighth

11

Claim, see Plf’s Opp’n to Martinez Defs.’ Mot., ECF No. 132, at 3;

12

however, he argues that he has properly stated a claim against both

13

Defendants for continuing the policies of their predecessors, and that

14

neither Defendant is entitled to qualified immunity.

15

the various legal standard governing the Martinez Defendants’ motion,

16

the Court addresses these issues in turn below.

17

A.

After reviewing

Legal Standards

18

1.

Failure to Exhaust Administrative Remedies

19

The Prison Litigation Reform Act of 1995 (PLRA) precludes legal

20

action based on prison conditions “by a prisoner confined in any jail,

21

prison,

22

remedies as are available are exhausted.”

23

Prisoners

24

remedies prior to filing suit, Jones v. Bock, 549 U.S 199, 211 (2007),

25

regardless of the relief sought by the prisoner or offered by the

26

administrative process, see Booth v. Churner, 532 U.S. 731, 740-41

or

other

are

correctional

required

to

facility

exhaust

all

until

such

administrative

42 U.S.C. § 1997e(a).
available

administrative

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 11

1

(2001).

The exhaustion requirement applies to all inmate suits about

2

aspects of prison life.
Proper

3

exhaustion

Porter v. Nussle, 534 U.S. 516, 532 (2002).
requires

“using

all

steps

that

the

agency

4

holds out, and doing so properly (so that the agency addresses the

5

issues on the merits).”

6

(internal quotation omitted) (emphasis in original).

7

administrative process, all inmates in CDCR facilities are required to

8

submit an appeal regarding an adverse decision, action, condition, or

9

policy within fifteen (15) working days after the event or decision
appealed.

See

Woodford v. Ngo, 548 U.S. 81, 89 (2006)

Cal.

Code

Regs.

tit.

15,

To begin the

10

being

§§

3084.1(a)

&

11

3084.6(c).

12

through several levels of review to properly exhaust the grievance

13

process.

Once the appeal process has begun, the inmate must proceed

Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997).

For an administrative appeal to properly exhaust a subsequent

14
15

legal

claim,

the

appeal

must

16

allow

prison

officials

17

Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009) (internal

18

quotation omitted).

19

the prison to a problem and facilitate its resolution, not to lay

20

groundwork for litigation.”

21

to identify the parties who may ultimately be sued.

22

623 F.3d 813, 824 (9th Cir. 2010).

23

legal theories and facts necessary to prove a subsequent legal claim.

24

Griffin, 557 F.3d at 1120.

25

if it puts the prison on adequate notice of the problem for which the

26

prisoner seeks redress.”

to

“provide

take

enough

appropriate

information . . . to

responsive

measures.”

“The primary purpose of a grievance is to alert

Id. at 1120.

The inmate is not required
Sapp v. Kimbrell,

Nor must the inmate state all

“A grievance suffices to exhaust a claim

Sapp, 623 F.3d at 824.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 12

1

If an inmate fails to exhaust his claims before asserting them

2

in a lawsuit, the court must dismiss those claims without prejudice.

3

Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).

4

seeking dismissal based on an inmate’s failure to exhaust may do so by

5

way of an unenumerated Rule 12(b) motion to dismiss.

6

The party seeking dismissal bears the burden of proving that the

7

inmate failed to exhaust administrative remedies.

8

2.

9

Section

A party

Id. at 1119.

Id.

Statute of Limitations
1983

does

not

contain

a

statute

of

limitations

10

provision; accordingly, federal courts apply the limitations period

11

governing analogous causes of action under state law.

12

v. Tomanio, 446 U.S. 478, 483-84 (1980).

13

the length of the limitations period, but also issues of tolling.

14

Wilson v. Garcia, 471 U.S. 261, 269 (1985).

15

statute of limitations is the state’s general or residual statute of

16

limitations for personal injury actions.

17

Bd. of Regents

State law governs not only

For § 1983 actions, the

Id. at 280.

Under California law, the statute of limitations for personal

18

injury claims is two years from the date the claim accrues.

19

Proc. Code § 335.1.

20

time of accrual, and if the claim seeks money damages pursuant to

21

§ 1983, the limitations period is tolled for two additional years.

22

Cal. Civ. Proc. Code § 352.1(a); see also Fink v. Shedler, 192 F.3d

23

911, 914 n.6 (9th Cir. 1999).

24

Cal. Civ.

If an inmate is serving non-life sentence at the

Federal law governs issues related to accrual of the claim.

25

Elliott v. City of Union City, 25 F.3d 800, 801-02 (9th Cir. 1994).

26

claim accrues when the plaintiff knows, or should know, of the injury,

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 13

A

1

which forms the basis of the cause of action.

2

F.3d 1121, 1128 (9th Cir. 1996).

3

when a plaintiff suspects, or should suspect, that his injury was

4

caused by wrongdoing.

5

530

6

sufficient to put a reasonable person on inquiry, the limitations

7

period begins to run.

(9th

Cir.

See Kimes v. Stone, 84

More specifically, accrual occurs

Braxton-Secret v. A. Robins Co., 769 F.2d 528,

1985).

Once

a

person

has

notice

or

information

Id.

8

3.

Qualified Immunity

9

The doctrine of qualified immunity shields government officials

10

from

liability

11

conduct

12

constitutional rights of which a reasonable person would have known.”

13

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

14

balances two important interests — the need to hold public officials

15

accountable when they exercise power irresponsibly and the need to

16

shield officials from harassment, distraction, and liability when they

17

perform their duties reasonably.”

18

231 (2009).

19

rather than a mere defense to liability,” it must be resolved at the

20

“earliest possible stage in litigation.”

does

for
not

civil

damages

violate

under

clearly

§

1983

“insofar

established

as

their

statutory

or

“Qualified immunity

Pearson v. Callahan, 555 U.S. 223,

Because qualified immunity is “an immunity from suit

Id. at 231-32.

21

4.

Failure to State a Claim

22

In considering a Rule 12(b)(6) motion to dismiss for failure to

23

state a claim upon which relief can be granted, courts consider only

24

the

25

contained in the complaint.

26

Cir. 2006).

complaint

and

must

accept

as

true

the

well-pled

allegations

Marder v. Lopez, 450 F.3d 445, 448 (9th

A court may consider evidence that the complaint relies

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 14

1

on, where the complaint refers to a document that is central to the

2

complaint and no party questions its authenticity.

3

States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

4

the complaint’s allegations, the Court must “construe the pleading in

5

a light most favorable to the [non-moving party], and resolve all

6

doubts in the pleader’s favor.”

7

(9th Cir. 2010).

8

stringent standards than those drafted by attorneys.

Id.; see United
In considering

Hebbe v. Pliler, 627 F.3d 338, 340

Pleadings filed by pro se inmates are held to less
Id. at 342.

9

A complaint may be dismissed when it lacks either “a cognizable

10

legal theory” or “sufficient facts alleged under a cognizable legal

11

theory.”

12

2011).

13

factual allegations must collectively state a plausible claim for

14

relief.

15

A plaintiff need not plead “detailed factual allegations”, but he must

16

provide “more than an unadorned, the-defendant-unlawfully-harmed-me

17

accusation.”

18

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

19

dismissal “if it tenders naked assertion[s] devoid of further factual

20

enhancement.”

21

B.

Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.
The Court need not accept legal conclusions as true, and the

Maya v. Centex Corp., 658 F.3d 1060, 1067-68 (9th Cir. 2011).

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
A complaint merits

Id. (internal quotations omitted).

Discussion

22

The Court first addresses Defendants’ arguments with respect to

23

dismissal of the Fourth and Fifth Claims against Defendant Martinez.

24

The

25

substitution of parties and dismissal of the Eighth Claim against

26

Defendants Jackson and Williams.

Court

then

addresses

Defendants’

arguments

regarding

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 15

the

1

1.

Dismissal of Claims Against Defendant Martinez

2

In his Fourth and Fifth Claims, Plaintiff seeks damages for

3

unlawful restraint on his religious beliefs and unlawful retaliation

4

for

5

Defendant

6

prison

7

rights] by placing him up for transfer.”

8

concerning his religious practice); see also SAC ¶ 117 (Fifth Claim)

9

(concerning his exercise of free speech).

seeking

redress

Martinez

committee]

for

and

his

others

hearings

to

grievances.
“used

Plaintiff

their

silence

alleges

positions

in

Plaintiff’s

that

[internal

[constitutional

Id. ¶ 111 (Fourth Claim,

In the factual portion of

10

the Complaint, Plaintiff also alleges that during this same time,

11

Defendant Martinez conspired with other “to have legally unavailable

12

additional punishments imposed based on Plaintiff’s legally authorized

13

challenges to retaliations and religious practice.”

Id. ¶ 66.

14

The Martinez Defendants seek dismissal of these claims on the

15

grounds that 1) Plaintiff failed to exhaust administrative remedies;

16

and 2) Plaintiff failed to file his claims within the statute of

17

limitations period.

18
19

a.

The Court discusses these arguments in turn.

Administrative Exhaustion

As a preliminary matter, the parties appear to dispute the scope

20

of Plaintiff’s claims against Defendant Martinez.

In his complaint,

21

Plaintiff cites to certain conversations between himself and Defendant

22

Martinez in 2001 — namely that Defendant Martinez claimed Plaintiff

23

“had a state employee enemy,” which warranted his transfer, but that

24

after he requested an investigation, she rescinded the transfer and

25

claimed that the employee “had moved on.”

26

contend that Plaintiff bases his claims against Defendant Martinez on

The Martinez Defendants

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 16

1

these conversations, and that no administrative grievances regarding

2

the conversations were ever filed.

3

appear that Plaintiff is basing his claims against Defendant Martinez

4

on these

5

instant motion, Plaintiff specifically indicates he does not assert

6

claims against Defendant Martinez based on these 2001 conversations.

7

See Plf’s Opp’n to Martinez Defs.’ Mot., ECF No. 132, at 2 (“Martinez

8

is only sued for her action on October 16, 2007.”).

2001 conversations.

But, on the contrary, it does not

In fact,

in his

opposition to

the

9

As to the alleged wrongful conduct on October 16, 2007, the

10

Court finds that Plaintiff fairly presented and exhausted his claims

11

concerning

12

grievance adequately appraised prison officials of his belief that

13

MCSP

14

transfers to harass Pagan practitioners and retaliate against them for

15

grievances.

16

In fact, Plaintiff’s grievance contains two full, single-spaced, typed

17

pages of detailed factual recitations setting forth his belief about

18

the alleged conduct at issue.

19

the

20

believed to have resulted from an allegedly falsified disciplinary

21

form, and he explained his concerns with the subsequent October 16,

22

2007 UCC meeting, in which Defendant Martinez participated:

23
24
25
26

Defendant

employees

ICC’s

Martinez.

unlawfully

used

Plaintiff’s

disciplinary

November

methods

10,

and

2007

punitive

See, e.g., Ex. 21 to Defs’ Mot., ECF No. 128-9, at 42-57.

September

26,

Id. at 47-48.

2007

transfer

He specifically grieved

recommendation,

which

On 10/16/07 I went before [a UCC] which also requested my
transfer based upon [Defendant] Bueno’s falsified CDC form
1030. . . . On 10/16/07 I received a 90 day yard/phone
restriction notice from [Defendant] Kudlata[;] it had been
backdated to appear as though it was the original
punishment imposed – [but] this punishment was not
available at the time of my hearing. . . . [Defendant]

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 17

he

1

Kudlata specifically states he is finding me guilty because
I am the leader of a religious group.

2
Id. at 47.
3
While true that Defendant Martinez is never specifically named,
4
a grievance need not name all possible defendants or facts as long as
5
“it puts the prison on adequate notice of the problem for which the
6
prisoner

seeks

redress.”

Sapp,

623

F.3d

at

824.

Plaintiff’s

7
complaint

plainly

names

Defendant

Martinez

in

the

context

of

her

8
participation in this alleged conspiracy, including her attendance and
9
participation in the October 16, 2007 UCC meeting.

Compare SAC ¶ 66

10
(setting out facts and participants in October 16 UCC meeting), with
11
id. ¶ 111 (claim against ICC and UCC meeting participants based on
12
transfer recommendation), and id. ¶ 117 (same).

MCSP officials were

13
sufficiently appraised of the nature of Plaintiff’s grievance and his
14
concerns

regarding

the

ICC

and

UCC

meetings,

in

which

Defendant

15
Martinez participated.

And the Martinez Defendants do not dispute

16
that Plaintiff’s appeal was properly exhausted at all necessary levels
17
of CDCR administrative review.

Accordingly, Plaintiff has fairly

18
exhausted his Fourth and Fifth Claims as to Defendant Martinez.
19
b.

Statute of Limitations

20
Although the Martinez Defendants assert that Plaintiff’s claims
21
against Defendant Martinez are barred by the statute of limitations,
22
the parties dispute the date on which Plaintiff’s claims accrued.
23
Nonetheless, the Martinez Defendants assert that regardless of the
24
accrual date, the limitations period ran before Plaintiff brought his
25
claims.

The Court addresses the accrual date and the running of the

26
limitations period separately.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 18

i.

1

Accrual of Plaintiff’s Claims

As discussed above, Plaintiff represents that Defendant Martinez

2
3

“is only sued for her actions on October 16, 2007.”

4

No.

5

Plaintiff’s

6

demonstrates Defendant Martinez’s “willingness to lie,” Plf’s Opp’n to

7

Martinez Defs.’ Mot., ECF No. 132, at 4 — shows that Plaintiff was

8

aware of Defendant Martinez’s allegedly wrongful conduct in 2001, and

9

that his action would have accrued at that time.

132,

at

3.

Undeterred,

reliance

on

the

these

Martinez

Plf’s Opp’n, ECF

Defendants

communications

—

which

argue

that

allegedly

But this argument is

10

flawed.

There is no indication that Plaintiff was aware in 2001 that

11

Defendant

12

discriminating against him.

13

alleged wrongful conduct between 2001 and 2006.

14

does not give rise to a presumption that he knew, or should have

15

known,

16

retaliation during that time.

17

eventually told Plaintiff that his transfer had been rescinded because

18

his state employee “enemy” had “moved on,” SAC ¶ 48, it is unclear

19

what claim Plaintiff could have asserted in 2001, such that — four

20

years later — the claim would have been barred by the statute of

21

limitations: Plaintiff had not yet suffered any cognizable harm.

Martinez

that

he

was

was

allegedly

being

lying

to

him

or

impermissibly

Plaintiff cites no other instances of

subject

to

Plaintiff’s complaint

unlawful

discrimination

and

Moreover, given that Defendant Martinez

22

Construing Plaintiff’s Complaint in a light most favorable to

23

him — as the Court must for purposes of this motion — the Complaint

24

indicates that Plaintiff was not aware of Defendant Martinez’s alleged

25

discriminatory motive in 2001, and that he did not become aware of it

26

until the UCC committee disciplined him and sought to transfer him in

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 19

1

October 2007.

At that point, according to Plaintiff, he then became

2

aware of the significance of his 2001 interactions with Defendant

3

Martinez.

4

against Defendant Martinez could have accrued was October 16, 2007.

Accordingly, the earliest date by which Plaintiff’s claims

ii.

5

Limitations Period

Regardless of the accrual date, the Martinez Defendants argue

6
7

that

Plaintiff’s

8

Because Plaintiff’s claim accrued on October 16, 2007, the statute of

9

limitations period expired on either October 16, 2009, or October 16,

10

2011, depending on whether Plaintiff was eligible for the two-year

11

tolling period discussed above.7

12

Plaintiff’s

13

December 14, 2011, fall outside the limitations period.

14

Martinez Defendants appear to have overlooked the previous iterations

15

of the complaint Plaintiff has filed in this action.

16

his initial complaint on October 16, 2008 — exactly one year after the

17

UCC committee meeting on October 16, 2007, the date his claim accrued.

18

ECF

19

Martinez as a party to the suit.

20

that she conspired with others “to put plaintiff up for a retaliatory

21

transfer via [internal prison committee] hearings designed to suppress

22

plain[t]iff’s free speech and religious practice[.]”

No.

1.

claims

claims

In

against

against

that

Defendant

are

untimely.

The Martinez Defendants assert that

Defendant

initial

Martinez

Martinez

complaint,
Id. at 4.

he

in

the

SAC,

filed

However, the

Plaintiff filed

identified

Defendant

He specifically alleged

Id. at 20.

This

23
24
25
26

7

The pleadings do not indicate whether Plaintiff is serving a non-life
sentence and would therefore be eligible for the two-year tolling.

In

any event, this distinction is immaterial because, as discussed below,
Plaintiff’s claims were filed within two years of accrual.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 20

1

allegation

is

substantively

identical

to

the

allegations

against

2

Defendant Martinez Plaintiff asserts by way of the Fourth and Fifth

3

Claims in the SAC.

4

SAC ¶ 117 (Fifth Claim).

Compare id., with SAC ¶ 111 (Fourth Claim), and

In seeking dismissal based on the statute of limitations, the

5
6

Martinez

Defendants

7

original complaint and, for that matter, the fact that this lawsuit

8

was filed in 2008.

9

[prison committee] meeting in 2007, yet he didn’t file suit under
December

appear

to

have

ignored

the

contents

of

the

See, e.g., Mot. at 11 (“Plaintiff knew about the

10

[sic]

11

Defendant Martinez and stated his claims against her when he filed the

12

original complaint on October 16, 2008, his claims against Defendant

13

Martinez are not barred by the statute of limitations.
2.

14

2011.”).

Substitution

of

Accordingly,

Parties

and

because

Dismissal

Plaintiff

of

Eighth

named

Claim

Against Defendants Jackson and Williams

15
16

In his Eighth Claim, Plaintiff asserts that Defendants Cash,

17

Fortson, and Sebok unlawfully punished him in violation of the Eighth

18

Amendment, and that Defendants Jackson and Williams — who replaced

19

Defendants Cash and Fortson, respectively — continued the unlawful

20

policies of their predecessors.8

21

used “imaginary threats to security and [an] inadequate exercise yard

Plaintiff alleges these Defendants

22
23

8

As discussed above, there are actually three separate sub-claims within
Plaintiff’s Eighth Claim.

The Martinez Defendants’ motion only pertains

to

which

24
25
26

the

first

sub-claim,

Plaintiff

Jackson, Williams, Cash, Fortson, and Sebok.

asserts

against

Defendants

Defendants Cash, Fortson,

and Sebok have filed a separate motion to dismiss, discussed below, that
also pertains to the first sub-claim of Plaintiff’s Eighth Claim.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 21

1

schedule [so] as to deprive Plaintiff of the basi[c] human need of

2

exercise[.]”

3

damages.

SAC ¶ 128.

Plaintiff seeks both injunctive relief and

Id. at 32 (prefatory text to ¶¶ 127-130).

4

As to Plaintiff’s Eighth Claim, the Martinez Defendants seek to

5

substitute Defendant Jackson with respect to the injunctive-relief

6

aspects of Plaintiff’s claim; they also seek to dismiss the claim on

7

the basis that the claim is barred in part by the Eleventh Amendment

8

and the doctrine of qualified immunity, and that Plaintiff has failed

9

to state a valid claim.

10

a.

The Court discusses these issues below.

Substitution of Parties

11

The Martinez Defendants ask the Court to substitute Defendant

12

Jackson for Defendants Williams, Sebok, Fortson and Cash as to the

13

injunctive-relief aspects of the Eighth Claim.9

14

this substitution is appropriate under Rule 25(d) because Defendant

15

Jackson, who is sued in his official capacity, has replaced Defendant

16

Cash as the current warden of LAC.

They contend that

Id. ¶ 33-34.

17

Rule 25(d) allows the court to “order substitution at any time”

18

when “a public officer who is a party in an official capacity dies,

19

resigns,

20

pending.”

21

part, in his official capacity, thus, substitution of Defendant Cash

22

in his official capacity is warranted.

23

Cash and Fortson are no longer employed at LAC, see SAC ¶¶ 34 & 36,

24

injunctive

or

otherwise

ceases

to

Fed. R. Civ. P. 25(d).

relief

against

these

hold

office

while

the

action

is

Defendant Cash is sued, at least in

Moreover, because Defendants

Defendants

in

their

individual

25
9

26

The Martinez Defendants’ motion does not seek substitution with regard
to the money-damages portion of the Eighth Claim.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 22

1

capacities is now moot.

2

Defendant Jackson for Defendants Cash and Fortson is appropriate,

3

pursuant

4

Plaintiff’s Eighth Claim.

to

Neither

5

Rule

The Court therefore finds substitution of

25(d),

party

has

as

to

indicated

the

injunctive-relief

whether

Defendants

portion

Williams

of

and

6

Sebok are still employed at LAC.

7

provides no basis for substitution of a party sued in his official

8

capacity who continues to hold office (Defendant Williams) or for a

9

party

sued

only

in

his

But assuming they are, Rule 25(d)

individual

capacity

(Defendant

Sebok).

10

Accordingly, the Court declines to substitute Defendant Jackson for

11

Defendants Williams and Sebok.
b.

12
The

13

Eleventh Amendment

Martinez

Defendants

contend

that

the

monetary-damages

14

portion of Plaintiff’s Eighth Claim against Defendants Jackson and

15

Williams is barred by the Eleventh Amendment.

16

precludes claims under § 1983 against state officials acting in their

17

official capacities, because such officials are not “persons” for

18

purposes of § 1983.

19

U.S. 43, 69 n.24 (1997) (“State officers in their official capacities,

20

like States themselves, are not amenable to suit for damages under §

21

1983.”); Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007).

22

Eleventh

23

applies to suits for monetary damages.10

Amendment

The Eleventh Amendment

Arizonas for Official English v. Arizona, 520

jurisdictional

bar

on

official-capacity

The
suits

See, e.g., Flint, 488 F.3d

24
25
26

10

Despite the Eleventh Amendment’s bar on money-damages suits, it does not
bar an injunctive relief § 1983 claim against an official-capacity state
officer for violations of a plaintiff’s constitutional rights.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 23

See

1

at 825.

Thus, to the extent the Eighth Claim seeks monetary damages

2

against Defendants Jackson and Williams in their official capacities,

3

the claim is barred by the Eleventh Amendment and must be dismissed.
c.

4

Qualified Immunity

5

The Martinez Defendants also seek dismissal of the injunctive-

6

relief portion of the Eighth Claim against Defendants Jackson and

7

Williams on the ground that they are entitled to qualified immunity.

8

But Defendants Jackson and Williams are sued only in their official

9

capacities.

10

capacity);

11

(explicitly

12

Defendants Jackson and Williams “in [their] official capacity only”).

13

State and municipal entities and their employees — when sued in their

14

official capacities — may not assert qualified immunity to shield

15

themselves from claims.11

16

159, 167 (1985) (“[A]n official in a personal-capacity action may,

17

depending

18

defenses, such as objectively reasonable reliance on existing law . .

19

.

[but]

See SAC ¶ 34 (naming Defendant Jackson in his official
id.

¶

36

stating

on

[i]n

his

an

(same
that

for

the

Defendant

Eighth

Williams);

Claim

is

id.

brought

¶

128

against

See, e.g., Kentucky v. Graham, 473 U.S.

position,

be

able

official-capacity

to

assert

action,

personal

these

immunity

defenses

are

20
Krainski v. Nevada ex rel. Bd. of Regents of Nev., 616 F.3d 963, 967-68

21

(9th Cir. 2010) (“A narrow exception [to the Eleventh Amendment bar]

22

exists where the relief sought is prospective in nature and is based on
an

23

ongoing

violation

of

the

plaintiff's

federal

constitutional

or

statutory rights.” (internal quotations omitted)).

24
25
26

11

For that matter — irrespective of whether these Defendants are sued in
their individual or official capacities — qualified immunity does not
shield a public official from injunctive-relief claims.

See, e.g.,

Wheaton v. Webb-Petett, 931 F.2d 613, 620 (9th Cir. 1991).

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 24

1

unavailable.”

(internal

2

Garden City, 991 F.2d 1473, 1482 (9th Cir. 1993) (citing Owen v. City

3

of Independence, 445 U.S. 622, 638 (1980)).

4

Williams may not rely on qualified immunity to shield themselves from

5

the injunctive relief sought by Plaintiff’s Eighth Claim.
d.

6

citations

omitted));

Hallstrom

v.

City

of

Defendants Jackson and

Failure to State a Claim

7

The Martinez Defendants also seek dismissal of the Eighth Claim

8

against Defendants Jackson and Williams on the basis that it consists

9

of a vague and conclusory allegation that these Defendants continued

10

the

policies

11

security and [an] inadequate exercise yard schedule,” SAC ¶ 128, to

12

inflict cruel and unusual punishment on Plaintiff.

13

Mot., ECF No. 128, at 11-12.

14

pled this claim in sufficient detail with respect to Defendants Cash

15

and Fortson; and because Defendants Jackson and Williams — who are

16

sued

17

Fortson at LAC, Plaintiff argues his claim should be deemed sufficient

18

with respect to Defendants Jackson and Martinez as well.

in

of

their

their

official

predecessors,

using

“imaginary

threats

to

Martinez Defs.’

In response, Plaintiff contends that he

capacities

—

replaced

Defendants

Cash

and

19

In reply, the Martinez Defendants abandon their prior argument

20

and instead ask the Court to dismiss the Eighth Claim on the basis

21

that

22

unconstitutional cruel and unusual punishment.

23

Reply, ECF No. 138, at 4-5.

24

argument

25

constitutionally sufficient and does not constitute cruel and unusual

26

punishment.

Plaintiff’s

is

that

alleged

facts

do

not

rise

to

the

level

of

See Martinez Defs.’

The substance of the Martinez Defendants’

two-to-four

hours

per

week

of

exercise

is

But even if true, this argument was raised for the first

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 25

1

time in the Martinez Defendants’ reply memorandum; they never raised

2

it in their initial memorandum, and Plaintiff has had no opportunity

3

to address it.

4

newly-raised argument.

5

1996) (per curiam) (declining to reach issue raised for the first time

6

in the reply brief).

7

argument by way of a separate, timely-filed dispositive motion.

8

C.

9

The Court declines to decide the motion based on this
See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.

The Martinez Defendants are free to renew this

Conclusion
For the foregoing reasons, the Martinez Defendants’ motion to

10

dismiss

11

Defendant

12

injunctive-relief portion of the Eighth Claim, and 2) dismissal of the

13

monetary-damages

14

Jackson and Williams.

15

dismissal

16

substitution of Defendant Jackson for Defendants Williams and Sebok as

17

to the injunctive-relief portion of the Eighth Claim, and 3) dismissal

18

of injunctive-relief portion of the Eighth Claim against Defendants

19

Jackson and Williams.

granted
Jackson

of

The

in
for

part

Cash

with

Defendants

portion

of

the

respect
Cash

Eighth

to

and

1)

substitution

Fortson

Claim

as

against

to

of
the

Defendants

The motion is denied in part with respect to 1)

Plaintiff’s

IV.

20
21

is

claims

against

Defendant

Martinez,

2)

THE CASH DEFENDANTS’ MOTION TO DISMISS

Defendants

seek

dismissal

of

the

following

claims:

22

1) the Fourth Claim, as to Defendants Bowen and Omeira; 2) the Eighth

23

Claim, as to Defendants Cash, Fortson, and Sebok; and 3) the Fifth and

24

Eighth Claims, as to Defendants Bradford, Beuchter, and Rushing.

25

Cash Defendants assert that Plaintiff failed to timely exhaust the

26

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 26

The

1

CDCR administrative appeal process for each of these claims before

2

first asserting them in the FAC on February 24, 2010.
Plaintiff

3

does

not

dispute

that

he

failed

to

exhaust

these

4

claims; instead, he alleges that he was prevented from exhausting

5

these claims because LAC appeals staff repeatedly “failed to timely

6

respond or timely provide a notice of delayed response” to his various

7

appeals.

8

Plaintiff asserts that the LAC appeals staff effectively deprived him

9

of administrative remedies, and that his claims should therefore be

Plf’s Opp’n to Cash Mot., ECF No. 153, at 1.

10

deemed exhausted.

11

A.

In essence,

Legal Standards
The legal standard governing a motion to dismiss for failure to

12
13

exhaust administrative remedies is generally discussed above.

14

part III.A.1, supra.

15

failure to exhaust on the ground that CDCR staff deprived him of

16

administrative remedies — thereby rendering those remedies effectively

17

unavailable — “[i]t is [P]laintiff’s burden to show that circumstances

18

existed

19

unavailable.”

20

360199,

21

dismissed, No. 12-15588 (9th Cir. Mar. 28, 2012).

22

B.

23

which

at

See

Because Plaintiff seeks to be excused from his

rendered

his

administrative

remedies

effectively

Meador v. Wedell, No. CIV S-10-0901-KJM-DAD P, 2012 WL
*7

(E.D.

Cal.

Feb.

2,

2012)

(unpublished),

appeal

Discussion
Tthe

Court

first

reviews

the

applicable

CDCR

regulations

24

governing inmate administrative appeals and staff responses thereto.

25

Next, the Court determines whether an inmate’s failure to exhaust can

26

be excused based on either a) improper screening of appeals by prison

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 27

1

officials, or b) a failure by prison officials to timely respond to

2

inmate

3

relevant appeals to determine whether Plaintiff’s failure to exhaust

4

that appeal should be excused.

appeals.

Finally,

the

Court

analyzes

each

of

Plaintiff’s

5

1.

Governing CDCR Regulations

6

CDCR provides one “informal” and three “formal” levels of review

7

for inmate appeals.

8

decision

9

satisfies the exhaustion requirement.

from

the

Cal. Code Regs. tit. 15 § 3084.5(a)-(d).
third

formal

(or

“Director’s”)

level

of

A

review

Barry v. Ratelle, 985 F. Supp.

10

1235, 1237-38 (S.D. Cal. 1997).

For non-medical appeals, the third-

11

level review can occur before the CDCR Office of Appeals.

12

of T. Kaestner ¶ 5, ECF No. 128-2, at 2.

See Decl.

13

At each level of appeal, CDCR staff must respond to the appeal

14

within a prescribed number of days: 1) for informal appeals, ten (10)

15

working days; 2) for first-level appeals, thirty (30) working days; 3)

16

for

17

third-level appeals, sixty (60) working days.

18

§ 3084.6(b)(1)-(4).

19

several

20

complexity of issues raised, or necessary involvement of external

21

parties.

22

the deadline, they must inform the inmate in writing of the reason for

23

delay and the estimated completion date.

second-level

appeals,

authorized

twenty

(20)

working

days12;

and

4)

for

Cal. Code Regs. tit. 15

CDCR staff may exceed these time limits for
reasons,

Id. § 3084.6(b)(5).

including

unavailability

of

staff,

If CDCR cannot respond to the appeal by

Id. § 3084.6(b)(6).

24
25
26

12

If the first-level appeal is waived, stay may respond to the secondlevel appeal within thirty (30) — instead of twenty (20) — working days.
Cal. Code Regs. tit. 15 § 3084.6(b)(3).

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 28

Each

1

CDCR

facility

must

designate

an

appeals

coordinator

to

2

screen appeals for compliance with CDCR regulations and, if necessary,

3

reject

4

screened and rejected if, inter alia, “[t]he appeal is incomplete or

5

necessary supporting documents are not attached.”

6

If the appeal is rejected for lack of supporting documentation, the

7

written rejection must instruct the inmate about further action the

8

inmate must take before resubmitting the appeal.

non-compliant

2.

9

Id.

§

3084.3(a).

Appeals

may

be

Id. § 3084.3(c)(5).

Id. § 3084.3(d).

Exhaustion Due to “Effectively Unavailable” Remedies

While

10

appeals.

the

PLRA

requires

inmates

to

exhaust

administrative

11

remedies, the inmate must exhaust “only those administrative remedies

12

‘as are available.’”

13

2010) (quoting 42 U.S.C. § 1997(e)(a)).

14

exhaust may be excused if no administrative remedies are actually or

15

effectively available.

16

1224

17

administrative

18

when

19

governing the appeals process.

20

federal inmate, filed an administrative grievance concerning what he

21

believed to be an improper strip search.

22

his grievance, prison officials cited a written policy (or “Program

23

Statement”) authorizing the search, but inadvertently cited the wrong

24

Program Statement, citing instead to a classified document addressing

25

internal prison security.

26

goose chase,” id. at 1226, during which the inmate repeatedly sought

(9th

Cir.

prison

Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir.

Id; see also Nunez v. Duncan, 591 F.3d 1217,

2010).

In

remedies

were

officials

Thus, an inmate’s failure to

Nunez,

the

unavailable

failed

to

Ninth
and

abide

by

Circuit

effectively
internal

591 F.3d at 1224.

that

exhausted

regulations

The plaintiff, a

Id. at 1220.

Id. at 1220-21.

held

In response to

After a “ten-month wild

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 29

1

copies

2

challenge the policy, he was eventually informed of the error.

3

1221-22.

4

administrative remedies, because the deadline for appealing to the

5

next level of review had lapsed.

6

failure to fully exhaust the inmate appeals process, the Ninth Circuit

7

held that the inmate’s failure was excused “because he took reasonable

8

and appropriate steps to exhaust his . . . claim and was precluded

9

from

10

of

the

wrong

document

from

various

agencies

so

he

could
Id. at

However, by that time, the inmate could no longer seek

exhausting,

mistake.”

not

through

his

Id.

In excusing the plaintiff’s

own

fault

but

by

the

Warden’s

Id. at 1224.

11

Plaintiff contends that his failure to exhaust his claims here

12

should similarly be excused for two reasons: first, he alleges that

13

LAC appeals staff improperly screened several of his appeals; and

14

second, he claims that LAC appeals staff ignored or failed to timely

15

respond

16

Plaintiff’s failure to exhaust should be excused on these grounds, the

17

Court

18

responses

19

excusing an inmate’s failure to exhaust.

to

several

first

examines

to

inmate

a.

20
The

21

of

his

appeals.

whether
appeals

Before

improper
can

addressing

screening

provide

a

of

or

sufficient

whether

untimely
basis

for

Improper Screening of Appeals

Ninth

Circuit

prison

exception

the

screen

exhaustion

23

administrative appeals” and thereby deny the inmate access to the

24

administrative appeals process.

25

court

26

grievances

renders

improperly

to

requirement

“improper

officials

an

22

held,

“where

recognizes

Sapp, 623 F.3d at 823.

screening

of

administrative

an

an

inmate’s

As the Sapp

inmate's

administrative

remedies

‘effectively

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 30

1

unavailable’ [because] [i]f prison officials screen out an inmate's

2

appeals for improper reasons, the inmate cannot pursue the necessary

3

sequence of appeals . . . .”

4

screening exception applies,

Id.

To demonstrate that the improper-

a prisoner must show that he attempted to exhaust his
administrative remedies but was thwarted by improper
screening.
In particular, the inmate must establish
(1)
that he actually filed a grievance or grievances that, if
pursued through all levels of administrative appeals, would
have sufficed to exhaust the claim that he seeks to pursue
in federal court, and (2) that prison officials screened
his grievance or grievances for reasons inconsistent with
or unsupported by applicable regulations.

5
6
7
8
9
10

Id. at 823-24.

11

The burden of proof is on the inmate.

360199, at *7.
b.

12

Meador, 2012 WL

Untimely Responses to Appeals

13

“The Ninth Circuit has not determined that an untimely response

14

by prison [staff] [automatically] excuse[s] for a prisoner’s failure

15

to exhaust, but it has left open the possibility that unjustified

16

delay in responding to a grievance, ‘particularly a time-sensitive

17

one,

18

available.’”

19

WL 3521926, at *4 (E.D. Cal. Sept. 8, 2010) (unpublished) (quoting

20

Brown v. Valoff, 422 F.3d 926, 943 n.18 (9th Cir. 2005)).

21

with “all the other circuits that have considered the question,” the

22

Ninth Circuit has refused “‘to interpret the PLRA so narrowly as

23

to . . . permit

24

requirement through indefinite delay in responding to grievances.’”

25

Brown, 422 F.3d at 943 n.18 (quoting Lewis v. Washington, 300 F.3d

26

829, 833 (7th Cir. 2002)) (alteration in original).

may

demonstrate

that

no

administrative

process

is

in

fact

Womack v. Bakewell, No. CIV S-09-1431 GEB KJM P., 2010

[prison

officials]

to

exploit

the

Consistent

exhaustion

Other judges in

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 31

1

this District “have relied on [the Ninth Circuit’s decision in] Nunez

2

and precedent from other circuits in finding that prison officials’

3

failure to process appeals within the time limits prescribed by prison

4

regulations renders an appeals process unavailable.”

5

3521926, at *4 (collecting cases).

6

bright-line

7

exhaust based on de minimis delays by prison officials — the reviewing

8

court instead must examine “how the process actually unfolds in a

9

particular

10

approach

case”

to

—

which

But, rather than employing a

would

determine

excuse

whether

remedies were effectively unavailable.
district

court’s

Womack, 2010 WL

an

the

inmate’s

inmate’s

failure

to

administrative

Id. at *5.

11

The

analysis

in

Womack

provides

helpful

12

guidance.

13

to his first-level CDCR appeal and, after failing to seek the next two

14

levels of formal review for more than two months, he opted instead to

15

file

16

circumstances,

17

appeals process was effectively unavailable.

18

officials did not respond to the plaintiff’s first-level appeal within

19

the prescribed time limit, they corrected that failure several months

20

before the plaintiff filed suit, and the plaintiff did not explain why

21

he abandoned the next level of CDCR review during those intervening

22

months.

23

As

In that case, the plaintiff received an untimely response

suit.

Id.
the

The

Womack

plaintiff

court

had

not

concluded

that,

demonstrated
Id.

that

under

the

the

CDCR

Although prison

Id.
the

Cash

Defendants

correctly

point

out,

an

inmate’s

24

exhaustion of a claim — or failure to do so — is determined at the

25

time

26

Robinson, 621 F.3d 1002 (9th Cir. 2010) (reaffirming the rule that a

the

claim

is

first

asserted

in

the

action.

See

Rhodes

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 32

v.

1

new claim must be exhausted before it is introduced federal court).

2

Even if the inmate subsequently exhausts after asserting the claim,

3

the tardy exhaustion cannot excuse the inmate’s earlier failure to

4

exhaust; in fact, under these circumstances, the court must dismiss

5

the claim even if it was fully exhausted after suit was filed.

6

e.g., McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (holding

7

that exhaustion during the pendency of the litigation will not save an

8

action from dismissal); see also Vaden v. Summerhill, 449 F.3d 1047,

9

1051 (9th Cir. 2006).

See,

Because exhaustion is determined at the time the claims are

10
11

first

asserted

12

unavailability” excuses an inmate’s failure to exhaust should also be

13

measured at the time the claims are first asserted.

14

plaintiff could readily have availed himself of further administrative

15

review

16

officials’ earlier untimeliness — and that he chose not to.

17

in Ellis v. Cambra, No. 102CV5646AWISMSP, 2005 WL 2105039 (E.D. Cal.

18

Aug. 30, 2005) (unpublished), the court rejected an inmate’s claims

19

for

20

response to his grievance at the informal level of appeal.

21

Because the inmate was notified before he filed suit that he could

22

proceed to a first level appeal even without having exhausted an

23

informal

24

administrative relief remained available,” and Plaintiff had not been

25

foreclosed from seeking administrative relief.

26

//

before

failure

in

he

to

appeal,

the

suit,

filed

exhaust,

the

his

even

Ellis

the

question

complaint

though

court

—

the

of

whether

In Womack, the

irrespective

inmate

reasoned

never

that

“effective

“an

of

prison

Likewise,

received

a

Id. at *5.

avenue

Id.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 33

of

1

The rule, then, that can be distilled from Womack, Ellis, and

2

the other cases upon which they rely, is that an inmate’s failure to

3

exhaust can be excused if prison officials have improperly deprived

4

the inmate of administrative remedies at the time the inmate files

5

suit.

6

effectively unavailable if 1) prison officials have failed to timely

7

respond to a grievance, 2) the inmate has received no notice of or

8

justification for the delay, and 3) the inmate has no other available

9

avenues to seek administrative relief.

In essence, an inmate can show that administrative remedies are

Under those circumstances, the

10

inmate has no redress for grievances except by way of a lawsuit, and

11

the inmate’s failure to exhaust under those circumstances must be

12

excused.13
Allowing

13

an

inmate

to

proceed

with

his

claims

under

these

14

conditions balances the need for comity with the need to ensure that

15

inmates can seek proper redress for legitimate grievances.

16

officials

17

timely.

18

appeals staff can ensure the administrative process remains available

19

by timely sending the inmate a notice of delay, which can be justified

can

control

whether

their

responses

to

Prison

grievances

are

And in the event that a delay becomes inevitable, the prison

20
21

13

And just as post-filing exhaustion does not excuse a plaintiff’s failure
to exhaust before bringing the claim, a subsequent untimely response by

22

prison officials after suit has been filed cannot serve to “unexhaust”
the claim and justify dismissal.

See Kons v. Longoria, No. 1:07-cv-

00918-AWI-YNP,

23

at

2009

WL

3246367,

*4

(E.D.

Cal.

Oct.

6,

2009)

24
(unpublished) (“The Court is unaware of any precedent that suggests that

25
26

Plaintiff’s administrative remedies . . . are no longer exhausted after
prison officials delivered their late response to his [second-level]
appeal . . . .”).

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 34

1

for a number of broadly-stated reasons.

2

See Cal. Code Regs. tit. 15 §

3084.6(5)(A)-(C).
That said, the Court is not suggesting that a minor delay in

3
4

processing

inmate

5

abandonment of the administrative grievance process.

6

files suit a mere one or two days after an appeal-response deadline

7

has passed has probably not demonstrated that administrative remedies

8

are

9

Nunez, 591 F.3d at 1224.

effectively

appeals

will

unavailable,

as

automatically

the

Ninth

excuse

Circuit

an

inmate’s

An inmate who

requires.

See

A de minimis delay does not sufficiently

10

demonstrate that the inmate has no available avenue of administrative

11

remedies.

12

reasonable period of time and has received no response or notice of

13

delay, the failure by prison officials to abide by inmate-grievance

14

regulations must excuse the inmate’s failure to exhaust; otherwise,

15

prison officials could indefinitely delay inmates from pursuing legal

16

remedies simply by ignoring all inmate appeals.

But, on the other hand, after the inmate has waited a

17

With this approach in mind, the Court now examines Plaintiff’s

18

claims to determine whether, as he asserts, his failure to exhaust his

19

claims against the Cash Defendants should be excused.

20

3.

Exhaustion of Plaintiff’s Claims

21

The Cash Defendants seek dismissal of the following claims: 1)

22

the Fourth Claim against Defendants Omeira and Bowen; 2) the First,

23

Second, and Third Claim against Defendant Cash, and the Eighth Claim

24

against Defendants Cash, Fortson, and Sebok; and 3) the Fifth and

25

Eighth Claims against Defendants Bradford, Beuchter, and Rushing.

26

to each of these groups of Defendants, the Court analyzes whether

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 35

As

1

Plaintiff attempted to exhaust these claims, and whether his failure

2

to do so must be excused because CDCR officials either improperly

3

screened or failed to timely respond to his administrative appeals.
a.

4

Defendants Omeira and Bowen

The Cash Defendants seek dismissal of the Fourth Claim as to

5
6

Defendants Omeira and Bowen.

7

inter

8

property from him, including tarot cards, and refused to return that

9

property.

alia,

that

In his Fourth Claim, Plaintiff alleges,

Defendant

SAC ¶¶ 84 & 115.

Bowen

confiscated

certain

religious

Plaintiff also contends that Defendant

10

Omeira denied him the ability to collect names for religious services,

11

an ability that is provided to other religious groups.

12

As

a

threshold

matter,

Plaintiff

concedes

Id. ¶ 114.
that

he

cannot

13

demonstrate he properly exhausted his claims with respect to Defendant

14

Omeira, and he admits that dismissal of Defendant Omeira is therefore

15

warranted.

16

Defendant Omeira.

Accordingly, the Court dismisses the Fourth Claim as to

17

As to Defendant Bowen, Plaintiff asserts that he tried to file

18

appeals concerning the confiscation of his property on four separate

19

occasions using the LAC appeals process, and that each time, LAC staff

20

chose not to process his appeals.

21

Plaintiff submits copies of two separate letters he wrote to Defendant

22

Beard’s predecessor, CDCR Secretary Michael Cate — dated August 23,

23

2009, and October 17, 2009 — in which Plaintiff repeats his assertion

24

that LAC staff ignored his appeals.

In support of this assertion,

25

But Plaintiff has submitted no evidence to show that he ever

26

filed appeals concerning Defendant Bowen or the confiscation of his

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 36

1

property.

2

subject matter of the appeals he allegedly filed with LAC.

3

23, 2009 letter only states that he previously filed three separate

4

appeals with LAC staff which were not processed, and asserts that LAC

5

staff did not provide him with access to the facility’s library.

6

XX to Rupe Decl., ECF No. 153, at 9.

7

states that “[o]bviously, [LAC staff], whom [sic] are still barring

8

all Pagan religious practices, have no intention of allowing this

9

appeal to go forward,” id. at 11; but again, the letter does not

10

identify the specific grievances raised in Plaintiff’s LAC appeals.

11

Both letters state that copies of his allegedly ignored appeals were

12

attached, but Plaintiff omits those attachments from his filing.

13

Court cannot conclude from the text of these letters, as Plaintiff

14

urges, that he actually submitted the appeals he purported to have

15

submitted,

16

Defendant Bowen.

17

His two letters to Secretary Cate do not identify the

or

Plaintiff

that

the

appeals

His August

Ex.

His October 17, 2009 letter

pertained

to

his

claims

The

against

There is simply no basis in the record to do so.
also

submits

a

copy

of

a

declaration,

purportedly

18

dated October 16, 2009, in which he asserts that LAC staff confiscated

19

his tarot cards and other religious property.

20

(“the Declaration”).

21

same claims Plaintiff raises against Defendant Bowen in this suit, it

22

does not satisfy Plaintiff’s burden of proving that he attempted to

23

exhaust his appeals concerning Defendant Bowen or the confiscation of

24

his property, for several reasons.

25
26

First,

the

ECF No. 153, at 12

While the Declaration appears to address the

record

is

devoid

of

any

indication

that

the

Declaration was provided to LAC appeals staff or Secretary Cate as

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 37

1

part of Plaintiff’s purported appeals concerning the confiscation of

2

his property.

3

his opposition to the instant dismissal motion, with no indication as

4

to whom it was sent or when.

Other than the fact that Plaintiff has

5

included

which

6

Secretary Cate, Plaintiff has provided the Court with no indication

7

this declaration was ever submitted to LAC in his appeals or that it

8

was included with his letters to Secretary Cate.

it

Second,

9

The Declaration is simply included as an attachment to

in

Exhibit

the

XX,

Declaration

also

suffers

contains

from

his

letters

credibility

to

issues.

10

Although the declaration is dated October 16, 2009 — the day before

11

Plaintiff sent his second letter to Secretary Cate — it states that

12

Plaintiff had already made “four attempts at appealing [his concerns

13

about confiscation of religious property] by strictly following CDC

14

and [LAC] appeal procedures.”

15

28,

16

motion, ECF No. 153, at 6, he had only submitted two appeals to LAC

17

staff concerning the confiscation of his property by the time he

18

prepared the Declaration — one on June 29, 2009, and one on September

19

29, 2009.

20

third and fourth appeals until December 11, 2009, and December 30,

21

2009, respectively.

22

having

23

nearly two months before he filed his third appeal – suggests that the

24

Declaration was not prepared on October 16, 2009, as it purports.

declaration

Plaintiff

prepared

in

See Rupe Decl., ECF No. 153, at 6.

previously

Id.

opposing

the

instant

He did not submit his

Thus, his reference in the Declaration to

submitted

four

appeals

concerning

this

issue

–

Third, the Declaration is not consistent with allegations in the

25
26

2013

But, according to the separate March

SAC.

The Declaration states that of his “four attempts at appealing

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 38

1

[the confiscation of his property] by strictly following [CDCR] and

2

[LAC]

3

processed or returned.”

4

indicates

5

returned by the LAC appeals coordinator “requesting documents the

6

coordinator reasonably knew were [inaccessible] to Plaintiff.”

7

84.

procedures[,]

that

the

[n]ot

one

of

Id. at 12.

final

two

these

appeals

has

been

On the other hand, the SAC

appeals

were

actually

received

and

SAC ¶

These representations appear to be incompatible.
Fourth,

8
9

appeal

the

Declaration

consists

entirely

of

Plaintiff’s

assertions that LAC staff did not process his appeal.
submitted

copies

not

11

puzzling,

12

copies to Secretary Cate on two separate occasions.

13

Plaintiff’s self-serving declarations and the two letters he submitted

14

to Secretary Cate — neither of which identifies the nature of the

15

grievances for which he sought review — do not provide sufficient

16

evidence that LAC officials ignored his appeals concerning Defendant

17

Bowen.

18

demonstrating that administrative remedies was unavailable to him.

19

See Rodgers v. Reynaga, No. CV 1-06-1083-JAT, 2009 WL 2985731, at *3

20

(E.D.

21

exception to PLRA’s demand for exhaustion based solely on Plaintiff’s

22

self-serving

23

destroyed by prison officials would completely undermine the rule.”).

These

Cal.

Sept.

that

these

Plaintiff

documents

16,

appeals

do

2009)

testimony

that

to

apparently

not

satisfy

(unpublished)

his

the

Plaintiff has

10

given

of

own

Court

retained

—

and

grievance

grant

was

is

submitted

By themselves,

Plaintiff’s

(“To

which

burden

Plaintiff

of

an

surreptitiously

24

Finally, Plaintiff’s claims that certain of his appeals were

25

destroyed by LAC staff are not credible in light of his documented

26

grievance history at LAC.

According to the unchallenged declaration

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 39

1

of N. Wilcox, the LAC appeals coordinator, Plaintiff submitted sixteen

2

other appeals between September 1, 2009, and December 30, 2009 — the

3

latter being the date he allegedly submitted his fourth and final

4

appeal concerning Defendant Bowen to LAC staff.

5

ECF No. 151-4, at 3-4.

6

review by the LAC Appeals Office, and both proceeded through Informal

7

and Level 1 Review during that time.

8

were screened and returned to Plaintiff for various reasons, such as

9

incompleteness, duplicativeness, lack of necessary documentation, and

Wilcox Decl. ¶¶ 9-10,

Two of those sixteen appeals were accepted for

The remaining fourteen appeals

10

lack of clarity.

In light of this documented history, Plaintiff’s

11

assertion that only certain appeals were ignored — specifically, those

12

pertaining to Defendant Bowen and Plaintiff’s confiscated property —

13

is not credible.
Plaintiff has not established that administrative remedies were

14
15

effectively unavailable for his claim against Defendant Bowen.

16

if the Court accepted as true Plaintiff’s allegation that LAC appeals

17

staff

18

failure was remedied before Plaintiff filed suit; his two subsequent

19

December 11 and 30, 2009 appeals on the same issue were — by his own

20

admission — received, screened, and returned by LAC.

21

Plaintiff

22

improperly screened or that he was unable to obtain and attach the

23

necessary documentation before resubmitting the appeals.

24

has failed to meet his burden of showing that administrative remedies

25

were effectively unavailable for his claim against Defendant Bowen.

26

Accordingly, because Plaintiff failed to properly exhaust this claim

ignored

has

Plaintiff’s

submitted

first

no

two

evidence

appeals,

showing

as

he

these

alleges,

Even

such

See SAC ¶ 84.
appeals

were

Plaintiff

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 40

1

before he first asserted it in the FAC, ECF No. 51, the Court must

2

dismiss the claim.
b.

3

Defendants Cash, Fortson, and Sebok

The Cash Defendants also seek dismissal of the First, Second,

4
5

and Third Claims against Defendant Cash for failure to exhaust.

6

No. 155, at 9.

7

Defendants Beard and Jackson.14

8

ECF

Defendants’ motion is denied as moot.

However, the SAC only asserts these claims against
Accordingly, this portion of the Cash

The Cash Defendants also seek dismissal of the Eighth Claim as

9
10

to Defendants Cash, Fortson, and Sebok.

11

asserts that these Defendants “created a prison program that uses

12

imaginary

13

schedule [so] as to deprive Plaintiff of the basi[c] human need of

14

exercise [and] thereby inflicting Plaintiff with cruel and unusual

15

punishment.”

16

dispute that this claim was fully exhausted through the third level of

17

CDCR review as of May 19, 2010, see Ex. 30 to Wilcox Decl., ECF No.

18

151-4, at 7-8, the Cash Defendants contend that the claim had not yet

19

been exhausted when the FAC was filed on February 24, 2010.

threats

to

security

SAC ¶ 128.

and

[an]

In that claim, Plaintiff

inadequate

exercise

yard

Although the parties apparently do not

20

In response, Plaintiff argues that his failure to exhaust should

21

be excused based on the LAC appeal staff’s untimely responses to his

22

appeal at the informal, first-level, and second-level review, as well

23
24
25
26

14

Defendant Beard, Secretary Cate’s successor as Secretary of CDCR, was
substituted for Secretary Cate on March 6, 2013.
149.

See Order, ECF No.

The Court also dismissed these claims against Defendant Martel

prior to directing service of the SAC.

See Order, ECF No. 103, at 2-3.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 41

1

as their initial improper screening of the appeal.15

2

below, Plaintiff’s arguments fail for three reasons: 1) his appeal was

3

timely addressed at all three levels of review; 2) his appeal was not

4

improperly screened; and 3) in any event, at the time Plaintiff filed

5

the FAC, he still had available avenues of administrative relief.

As discussed

6

First, in contending that LAC appeals staff untimely responded

7

to his appeal at various levels of review, Plaintiff apparently relies

8

on

9

regulations

a

mistaken

understanding

for

the

of

processing

the
of

time

limits

inmate

imposed

appeals;

he

by

CDCR

offers

no

10

citation to authority for his belief that shorter deadlines apply.

11

See Rupe Decl., ECF No. 153, at 6.

12

forth these time limits, discussed above, LAC timely responded at each

13

level

14

Defendants are correct that the LAC appeals staff is only required to

15

provide an estimated completion date in their notice of delay.

16

Cal. Code Regs.

17

require the review to actually be completed by the estimated date.

18

See

19

completion date); id. § 3084.6(b)(5) (listing reasons why exception to

20

regulatory deadlines is permitted, but not imposing any additional

21

deadlines if one of the exceptions is found to apply).

of

id.

review.

And

as

to

the

Under the regulations setting

second-level

tit. 15 § 3084.6(b)(6).

(imposing

requirement

of

The

written

review,

the

Cash

See

regulations do not

notice

of

estimated

22
23

15

Based

on

the

documents

contained

in

Exhibit

YY

to

Plaintiff’s

declaration, ECF No. 153, at 14-17, as well as Plaintiff’s citation to

24
Exhibit 30 of the declaration of N. Wilcox, ECF No. 151-4, at 6-22, all

25
26

parties apparently agree that the LAC appeal at issue was assigned a log
number of LAC-09-01235.

The Cash Defendants do not dispute that this

appeal sufficiently addresses the substance of Plaintiff’s Eighth Claim.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 42

During

1

the

second-level

review

of

Plaintiff’s

appeal,

LAC

2

appeals staff timely notified Plaintiff on February 2, 2009 of a delay

3

in processing his appeal and provided him with an estimated completion

4

date

5

completed

6

completion date — does not render the response untimely.

of

February
until

8,

2009.

February

The

9,

fact

2009

—

that
one

the

day

response

past

the

was

not

estimated

Second, Plaintiff fails to show that his appeal was improperly

7
8

screened.

9

staff

The crux of Plaintiff’s concern is that the LAC appeal

returned

his

informal

appeal

“multiple

times

requesting

10

documents that [he] did not possess and were in the exclusive control

11

of staff.”

12

submitted

by

13

notations,

presumably

14

understand what a “PSR” was — the document that LAC appeals staff

15

required him to submit before processing his appeal.

16

30 to Wilcox Decl., ECF No. 151-4, at 20.

17

indicates that within two weeks, Plaintiff had obtained a PSR – a

18

Program Status Report — and had submitted it with his informal appeal,

19

which was then processed.

20

and completed both first- and second-level review.

21

appeals staff’s request for a PSR constituted improper screening, the

22

error was quickly rectified and Plaintiff thereafter proceeded with

23

several levels of administrative review before ever filing the FAC.

24

These facts do not show that Plaintiff was actually inhibited from

25

seeking administrative remedies due to the alleged improper screening.

26

//

Rupe Decl., ECF No. 153, at 6-7.
the

Cash

Defendants

from

Plaintiff,

contains

The appeal record
several

indicating

that

handwritten
he

did

not

See, e.g., Ex.

However, the record also

See id. at 13-19.

Plaintiff then sought
So even if the LAC

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 43

Finally,

1

Plaintiff

apparently

does

not

dispute

the

Cash

2

Defendants’ contention that his second-level appeal was completed (and

3

denied) on February 9, 2009.

4

No. 151-4, at 3; Rupe Decl., ECF No. 153, at 2.

5

Plaintiff sought a third-level review.

6

No. 151-4, at 10.

7

initiating the third-level review and nearly three calendar months

8

before receiving the results of that review — Plaintiff submitted his

9

FAC to the Court, asserting his grievance against Defendants Cash,

See id. at 11-12; Wilcox Decl. ¶ 9, ECF
The next day,

Ex. 30 to Wilcox Decl., ECF

But on February 16, 2009 — a mere six days after

10

Fortson, and Sebok.16

11

failure to await the results of the third-level review — which would

12

have properly exhausted his claim — before filing the FAC.

13

plaintiff

14

administrative remedies were effectively unavailable at the time he

15

brought his claim; indeed, the undisputed evidence demonstrates that

16

such

17

contemporaneously pursuing them.

in

remedies

Plaintiff

18

Plaintiff has offered no justification for his

Womack,

were

has

Plaintiff

available

failed

has

and

to

failed

that

meet

to

Plaintiff

his

burden

Like the

demonstrate

was

actively

of

showing

that

and

that

19

administrative remedies were effectively unavailable for Eighth Claim

20

against Defendants Cash, Fortson, and Sebok.

21

to properly exhaust this claim before he first asserted it in the FAC,

22

the Court must dismiss the claim.

23

//

24

//

Because Plaintiff failed

25
16

26

Although

filed

on

February 16, 2010.

February

24,

2010,

the

FAC

is

signed

and

See ECF No. 51, at 34.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 44

dated

c.

1

Defendants Bradford, Beuchter, and Rushing

Lastly, the Cash Defendants seek dismissal of the Eighth Claim

2
3

against Defendants Bradford, Beuchter, and Rushing.

In that claim,

4

Plaintiff asserts that these Defendants intentionally failed to place

5

him on the prison work assignments list and failed to “take [him] to

6

committee, subject[ing] [him] to further punishments within the cruel

7

and [unusual] punishment program.”

SAC ¶ 130.

8

Although it appears that Plaintiff’s claim was fully exhausted

9

through the third level of CDCR review as of September 10, 2010, see

10

Ex. 32 to Wilcox Decl., ECF No. 151-4, at 38-39, the Cash Defendants

11

contend that the claim had not yet been exhausted when Plaintiff filed

12

the FAC on February 24, 2010.

13

his failure to exhaust should be because LAC failed to timely respond

14

to his informal appeal, and in fact, had still not responded by the

15

time he filed the FAC.17

16

Plaintiff’s administrative appeal did not sufficiently address the

17

merits

18

Rushing, as asserted in the FAC, and that in any event, the delay in

19

responding

20

administrative remedies effectively unavailable.

of

his

to

claim

his

In response, Plaintiff contends that

The Cash Defendants assert, however, that

against

appeal

was

Defendants

not

Bradford,

significant

Beuchter,

enough

to

and

render

21

As to the Cash Defendant’s first contention, the Court finds

22

that Plaintiff’s informal appeal properly and sufficiently raised his

23
17

Based

on

the

documents

contained

in

Exhibit

ZZ

to

Plaintiff’s

24
declaration, ECF No. 153, at 19, as well as Plaintiff’s citation to

25
26

Exhibit 32 of the declaration of N. Wilcox, ECF No. 151-4, at 37-62, all
parties apparently agree that the LAC appeal at issue was assigned a log
number of LAC-10-00475.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 45

1

grievance.

In that appeal, Plaintiff was only required to “describe

2

the

3

3084.2(a).

4

to LAC “as a retaliation for filing a civil suit” and that he was

5

“being intentionally barred from job assignments” while at LAC.

6

32 to Wilcox Decl., ECF No. 151-4, at 54.

7

substantively identical to Plaintiff’s allegations in the Eighth Claim

8

against Defendants Bradford, Beuchter, and Rushing.

problem

As

9

to

and

action

requested.”

Cal.

Code

Regs.

tit.

15

§

Plaintiff’s informal appeal stated that he was transferred

the

issue

of

timeliness,

the

Ex.

These statements are

Cash

Defendants

do

not

10

dispute that LAC’s response to Plaintiff’s informal appeal was delayed

11

without any notice or explanation.

12

informal appeal was processed on January 12, 2010, and that the appeal

13

was subject to a ten-working-day response requirement, necessitating a

14

response by no later than January 27, 2010.

See Cash Defs.’ Reply to

15

Mot.,

Code

16

3084.6(b)(1)).

17

respond to the appeal until February 23, 2010, approximately one month

18

(or

19

characterize this delay as “minor,” but in reality, the response to

20

Plaintiff’s informal appeal took nearly three times as long as CDCR

21

regulations mandate.

22

CDCR

23

notice of or justification for the delay.

ECF

No.

eighteen

155,

at

10

(citing

They concede that Plaintiff’s

Cal.

Regs.

tit.

15,

§

They further concede that LAC staff did not actually

working

regulations,

days)

later.

Id.

The

Cash

Defendants

Despite this delay, and in further violation of

Plaintiff

was

apparently

never

provided

with

a

24

On February 16, 2009 – after waiting twenty days for the overdue

25

response to his informal appeal, and after receiving no notice of or

26

reason for the delay – Plaintiff filed the FAC, asserting his claim

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 46

1

against Defendants Bradford, Beuchter, and Rushing.

2

did so, Plaintiff had exhibited a good-faith reasonable effort to

3

administratively exhaust his grievance.

4

eventually

5

subsequent remedial measure did not “unexhaust” Plaintiff’s claim.

6

See Kons v. Longoria, No. 1:07-cv-00918-AWI-YNP, 2009 WL 3246367, at

7

*4 (E.D. Cal. Oct. 6, 2009) (unpublished).

8

sufficiently

9

effectively

responded

to

his

demonstrated
unavailable

informal

that

for

his

At the time he

Although LAC appeals staff
appeal

one

week

that

Accordingly, Plaintiff has

administrative
Eighth

later,

Claim

remedies

against

were

Defendants

10

Bradford, Beuchter, and Rushing when he submitted the FAC on February

11

16, 2010.

12

C.

Conclusion
For

13

the

foregoing

reasons,

the

Cash

Defendants’

motion

is

14

granted in part with respect to 1) dismissal of the Fourth Claim

15

against Defendants Omeira and Bowen, and 2) dismissal of the Eighth

16

Claim

17

Defendants’ motion is denied as moot in part with respect to dismissal

18

of the First, Second, and Third Claim against Defendant Cash, and

19

denied

20

Defendants Bradford, Beuchter, and Rushing.

against

in

part

Defendants

with

Cash,

respect

V.

21

to

Fortson,

and

dismissal

of

Sebok.

all

The

claims

Cash

against

CONCLUSION

22

Accordingly, IT IS HEREBY ORDERED:

23

1.

GRANTED IN PART AND DENIED IN PART.

24
25
26

The Martinez Defendants’ Motion to Dismiss, ECF No. 128, is

2.

Plaintiff’s

Eighth

Claim,

insofar

as

it

seeks

monetary

damages against Defendants Jackson and Williams in their

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 47

1

official

2

PREJUDICE.

3

3.

capacities

under

§

1983,

is

DISMISSED

WITH

Defendant Jackson is hereby substituted for Defendants Cash

4

and Fortson as to Plaintiff’s Eighth Claim, insofar as it

5

seeks injunctive relief.

6

4.

The Cash Defendants’ Motion to Dismiss, ECF No. 151, is

7

GRANTED IN PART, DENIED AS MOOT IN PART, AND DENIED IN

8

PART.

9

5.

Plaintiff’s

Fourth

Claim

against

Defendants

Omeira

and

10

Bowen is DISMISSED WITHOUT PREJUDICE.

11

is directed to TERMINATE Defendants Omeira and Bowen as

12

parties to this action.

13

6.

The Clerk’s Office

Plaintiff’s Eighth Claim against Defendants Cash, Fortson,

14

and

15

Office is directed to TERMINATE Defendants Cash, Fortson,

16

and Sebok as parties to this action.

17
18
19

Sebok

is

IT IS SO ORDERED.

DISMISSED

WITHOUT

PREJUDICE.

The

The Clerk’s Office is directed to enter this

Order and provide copies to Mr. Rupe and to defense counsel.
DATED this

3rd

day of June 2013.

20
21

Clerk’s

s/ Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

22
23
24
25
26
C:\Windows\Temp\notes87944B\08.2454.dismiss2.gip.lc2.docx

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS
TO DISMISS - 48