Walker v. Whitten et al
Filing
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ORDER signed by Judge William B. Shubb on 4/14/11, ORDERING that 45 the findings and recommendations are ADOPTED, except to the extent that they rely on section 3084.9(i) of Title 15 of the CA Code of Regulations. Defendants' 23 motion to dismiss is DENIED. This action is dismissed as against defendant Moore due to plaintiff's failure to prosecute. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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NO. CIV. 2:09-642 WBS GGH
JEFFREY E. WALKER,
Plaintiff,
ORDER RE: MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATIONS
v.
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A.H. WHITTEN, et al.,
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Defendants.
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----oo0oo---Plaintiff Jeffrey E. Walker, a state prison inmate
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proceeding pro se, initiated this action for claims pursuant to
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42 U.S.C. § 1983.
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule
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302(c)(17).
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The matter was referred to a United States
On February 9, 2011, the magistrate judge filed
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findings and recommendations, which were served on all parties
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and which contained notice to all parties that any objections to
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the findings and recommendations were to be filed within twenty-
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one days.
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magistrate judge’s recommendation that their motion under Federal
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Rule of Civil Procedure 12(b) to dismiss for plaintiff’s failure
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to exhaust administrative remedies be denied.2
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(Docket No. 45.)
Defendants1 object to the
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(Docket No. 49.)
In accordance with the provisions of 28 U.S.C. §
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636(b)(1)(C), this court has conducted a de novo review of this
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case.
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adopt the findings and recommendations, except to the extent that
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they rely on section 3084.9(i) (providing for special procedures
Having carefully reviewed the entire file, the court will
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for staff complaints) of Title 15 of the California Code of
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Regulations, which was not in effect when plaintiff filed his
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administrative appeals, and will deny the moving defendants’
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motion to dismiss for plaintiff’s failure to exhaust
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administrative remedies.
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I.
Factual and Procedural Background
As pertinent to the motion, plaintiff filed a grievance
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Defendants Whitten, Greer, Protivinsky, and Brewer
brought the motion to dismiss. The objections do not specify
which of the moving defendants object to the magistrate judge’s
findings and recommendations, so the court assumes that all
moving defendants object.
In their objections, defendants do not distinguish
among themselves. In other words, defendants do not argue that
plaintiff failed to exhaust administrative remedies as to a
particular defendant for a reason different from the reason that
plaintiff failed to exhaust for the other defendants. Thus, this
court’s Order does not distinguish among the defendants with
respect to exhaustion.
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The magistrate judge also recommended dismissal as to
defendant Moore because plaintiff did not comply with an order to
return the USM-285 form and a copy of the Complaint in order to
facilitate service on defendant Moore. (See Feb. 9, 2011,
Findings & Recommendations at 13:3-6 (Docket No. 45).) Plaintiff
did not file an objection to the findings and recommendations.
Accordingly, the court will adopt the findings and
recommendations with regard to dismissal of this action as
against defendant Moore.
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in November of 2008 for improper searches, retaliation, and
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deliberate indifference to plaintiff’s psychiatric history in
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2007 and 2008.
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misconduct stemmed from the dismissal of a rules violation report
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in 2007.
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(“Lewis Decl.”) Ex. C at 28-293 (Docket No. 23-4).)
Plaintiff alleges that the alleged staff
(See Lewis Decl. in Supp. of Defs.’ Mot. to Dismiss
The grievance was categorized as a “staff complaint.”
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At the second level of the inmate appeals process, plaintiff
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received a response informing him that his administrative appeal
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was partially granted and that an investigation was conducted,
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but the investigation found that the allegations were
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unsubstantiated.
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administrative appeal at the director’s level.
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before plaintiff received a response at the director’s level,
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plaintiff filed the instant action in this court.
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received a response at the director’s level denying his appeal in
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May of 2009.
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II.
(Id. Ex. C at 32-33.)
Plaintiff then filed an
In March of 2009,
Plaintiff
(Id. Ex. C at 26-27.)
Discussion
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A prisoner may not bring a § 1983 claim “until such
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administrative remedies as are available are exhausted.”
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U.S.C. § 1997e(a).
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requirement before filing the complaint.
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311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam).
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need not plead or prove exhaustion; a plaintiff’s failure to
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exhaust is an affirmative defense that must be raised and proved
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by the defendant.
The prisoner must satisfy the exhaustion
See McKinney v. Carey,
A plaintiff
See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th
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The page numbers are those assigned by the court’s
CM/ECF system.
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Cir. 2003).
A defendant may move to dismiss for a plaintiff’s
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failure to exhaust pursuant to Federal Rule of Civil Procedure
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Rule 12(b).
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the pleadings and decide disputed issues of fact.
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1119-20.
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prejudice.
In deciding the motion, the court may look beyond
See id. at
Failure to exhaust requires dismissal without
Id. at 1120.
Exhaustion is mandatory regardless of the form of
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relief sought by the prisoner.
See Booth v. Churner, 532 U.S.
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731, 739 (2001) (prisoners are obligated to navigate all of a
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prison’s administrative process “regardless of the fit between a
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prisoner’s prayer for relief and the administrative remedies
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possible”), overruling Rumbles v. Hill, 182 F.3d 1064 (9th Cir.
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1999).
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levels of review once he has either received all ‘available’
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remedies at an intermediate level of review or been reliably
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informed by an administrator that no remedies are available.”
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Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
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However, “a prisoner need not press on to exhaust further
Because “there can be no ‘absence of exhaustion’ unless
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some relief remains ‘available,’ a defendant must demonstrate
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that pertinent relief remained available.”
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Pertinent relief may remain available “at unexhausted levels of
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the grievance process or through awaiting the results of the
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relief already granted as a result of that process.”
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Evidence that the defendant may use to meet his burden includes
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“statutes, regulations, and other official directives that
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explain the scope of the administrative review process;
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documentary or testimonial evidence from prison officials who
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administer the review process; and information provided to the
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Id. at 936-37.
Id. at 937.
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prisoner concerning the operation of the grievance procedure.”
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Id.
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informs [the court’s] determination of whether relief was, as a
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practical matter, ‘available.’”
The latter category of evidence is relevant because “it
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Id. (emphasis added).
Here, when plaintiff filed his administrative appeals,
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an inmate in California could file administrative appeals
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following the procedures found in sections 3084.1 through 3084.7
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of Title 15 of the California Code of Regulations.4
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regulations in effect at the time, a prisoner “[could] appeal any
Under the
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departmental decision, action, condition, or policy which they
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[could] demonstrate as having an adverse effect upon [his]
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welfare.”
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set forth four levels of appeal: (1) informal level, in which the
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prisoner and the staff attempted to resolve the issue; (2) first
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formal level, usually conducted by the institution’s appeals
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coordinator; (3) second formal level, conducted by the
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institution’s head; (4) and third formal level, conducted by the
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director of the California Department of Corrections and
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Rehabilitation (“Department”).
Cal. Code Regs. tit. 15, § 3084.1(a).
The regulations
Defendants have provided the Department’s
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Emergency regulations are currently in effect that
amend and add sections to the regulations that were in effect
when plaintiff filed his administrative appeals. The emergency
regulations can be found at sections 3084.1 through 3084.9 of
Title 15 of the California Code of Regulations. See Cal. Code
Regs. tit. 15, §§ 3084.1-3084.9.
While the amended regulations provide additional
support to deny defendants’ motion, the court will not adopt the
magistrate judge’s findings and recommendations to the extent
that they rely on regulations as amended because they were not in
effect when plaintiff filed his administrative appeals. (See
Feb. 9, 2011, Findings & Recommendations at 6:21-23, 7:19-21, 9
n.5.)
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Administrative Bulletin, issued on August 21, 1998, governing the
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processing of appeals that allege staff misconduct.
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Pro Tunc Req. for Extension of Time to File Ex. A
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(“Administrative Bulletin”) (Docket No. 50).)
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has described this Bulletin as reflecting a procedure in which
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the only remedy available for an appeal categorized as a “staff
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complaint” is an investigation into the alleged staff misconduct.
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Brown, 422 F.3d at 937-39.
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complaints which allege any misconduct by a staff member shall be
(Defs.’ Nunc
The Ninth Circuit
The Bulletin provides that “ALL
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logged by the appeals coordinator as a Staff Complaint.”
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(bold in original).)
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(Id.
The Bulletin states that if a staff complaint “warrants
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a formal . . . investigation,” then the second level response
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“shall note that the appeal was granted or partially granted
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(depending upon the action requested by the appellant).” (Id. § 2
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(emphasis added).)
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granted suggests that an investigation is the only remedy
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available to a prisoner alleging staff misconduct:
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appeal directed to the staff complaint procedure is given a
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‘granted’ or ‘partially granted’ response depends not on whether
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there remains some possibility of obtaining relief through the
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appeals process, but on ‘the action requested by the appellant.’”
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Brown, 422 F.3d at 939.
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The Bulletin’s definition of partially
“Whether an
The response at the second level that plaintiff
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received for his staff complaint is consistent with the Bulletin.
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(See Lewis Decl. Ex. C at 32.)
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appeal was partially granted at the second level and that an
The response stated that the
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investigation into the allegations had been conducted.
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response informed plaintiff that the investigation revealed no
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evidence to support his allegations.
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The
The response noted that plaintiff sought additional
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remedies beyond an investigation into alleged staff misconduct,
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such as disciplinary action, a restraining order, and that the
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staff be professional in their interactions with plaintiff.
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Important to this motion, the response suggests that no further
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remedies were available: “Although you have the right to submit a
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staff complaint, a request for administrative action regarding
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staff or the placement of documentation in a staff member’s
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personnel file is beyond the scope of the staff complaint
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process.”
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level, which defendants argue plaintiff was required to receive
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before filing the instant action, confirms that no further
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remedies remained available once an investigation was ordered and
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contained this same language quoted above.
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(Id. Ex C at 33.)
The response at the director’s
(Id. Ex. C at 26.).
Relying on Brown, a number of courts have found that an
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appeal of a complaint categorized as a “staff complaint” was
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exhausted once an investigation was ordered.5
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Williams, No. CIV S-09-0505 MCE CMK, 2010 WL 4880657, at *6 (E.D.
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Cal. Nov. 23, 2010) (magistrate judge’s findings and
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recommendations), adopted by No. 2:09-cv-00505 MCE CMK, 2011 WL
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346536 (E.D. Cal. Feb. 1, 2011); Cottrell v. Wright, No. CIV
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S-09-824 JAM KJM, 2010 WL 4806910, at *5 (E.D. Cal. Nov. 18,
See, e.g., Lugo v.
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Inexplicably, despite the magistrate judge expressly
relying on Brown, (see Feb. 9, 2011, Findings & Recommendations
at 7:16-9:7), defendants have not even cited Brown in their
objections.
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2010) (magistrate judge’s findings and recommendations), adopted
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by No. CIV S-09-0824 JAM DAD, 2011 WL 319080 (E.D. Cal. Jan. 28,
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2011); Aubert v. Elijah, No. 1:07-cv-01629 LJO GSA, 2010 WL
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3341915, at *7 (E.D. Cal. Aug. 24, 2010) (magistrate judge’s
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findings and recommendations), adopted by No. 1:07-cv-01629 LJO
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GSA, 2010 WL 3825609 (E.D. Cal. Sept. 28, 2010); Lees v. Felker,
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No. CIV S-08-196 KJM, 2010 WL 2353517, at *4 (E.D. Cal. June 9,
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2010) (magistrate judge’s order); Foster v. Verkouteren, Civil
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No. 08cv0554, 2009 WL 2485369, at *5 (S.D. Cal. Aug. 12, 2009)
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(magistrate judge’s order), aff’d on other grounds, No. 09-56396,
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2010 WL 4813674 (9th Cir. Nov. 23, 2010); Kidd v. Biggs, No. CV
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01:06-1098 BLW MHW, 2009 WL 2151836, at *4 (E.D. Cal. July 16,
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2009) (magistrate judge’s findings and recommendations), adopted
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by No. 1:06-CV-1098 BLW MHW, 2009 WL 3157536 (E.D. Cal. Sept. 28,
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2009); Ransom v. Rojas, No. 1:05-cv-00283 AWI GSA, 2008 WL
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4640619, at *4 (E.D. Cal. Oct. 16, 2008) (declining to adopt
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magistrate judge’s findings and recommendations); Harris v. Duc,
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No. CIV S-06-2138 JAM DAD, 2008 WL 3850214, at *5 (E.D. Cal. Aug.
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15, 2008) (magistrate judge’s findings and recommendations),
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adopted by No. CIV S-06-2138 JAM DAD, 2008 WL 4463604 (E.D. Cal.
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Oct. 02, 2008); Lay v. Marrow, No. CIV S-07-0711 JAM GGH, 2008 WL
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2954185, at *7 (E.D. Cal. July 30, 2008) (magistrate judge’s
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findings and recommendations).
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In this case, unlike in Brown, plaintiff was informed
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in the response at the second level that allegations of staff
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misconduct “do not limit or restrict the availability of further
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relief via the inmate appeals process” and that he must submit
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the staff complaint appeal through the director’s level to
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exhaust his administrative remedies.
(See Lewis Decl. Ex. C at
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33.)
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Brown have dealt with this same language in a response and did
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not find that it was sufficient to meet the defendant’s burden.
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See Cottrell, 2010 WL 4806910, at *5; Aubert, 2010 WL 3341915, at
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*7; Lees, 2010 WL 2353517, at *4; Foster, 2009 WL 2485369, at *5.
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This court agrees that this language is insufficient to
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meet defendants’ burden of “demonstrat[ing] that pertinent relief
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remained available.”6
Many of the courts that have found exhaustion relying on
Brown, 422 F.3d at 936-37.
First,
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information provided to an inmate is relevant to the issue of
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whether the remedies were available as a practical matter, not
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whether remedies were in fact available.
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(explaining the relevancy of information provided to an inmate).
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Second, even if this language were relevant to the issue of
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whether a remedy was in fact available, this language is not
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sufficient to meet defendants’ burden in light of contradictory
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information provided in the same response at the second level and
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in the response at the director’s level.
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confirms that no additional remedies were available.
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Cf. id. at 937
Moreover, the Bulletin
In seeming recognition that this language will not
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The court recognizes that some courts have either
expressly distinguished Brown based on this language or, while
not citing Brown, relied on this language to find lack of
exhaustion. See, e.g., McGinnis v. Elijah, Civil No. 1:08cv0793
IEG, 2009 WL 2244188, at *3 (E.D. Cal. July 27, 2009)
(distinguishing Brown); Velasquez v. Elhendie, No. 2:07-cv-02419
HDM RAM, 2009 WL 1357420, at *2 (E.D. Cal. May 13, 2009) (same);
Treglia v. Cal. Dep’t of Corr. & Rehab., No. CIV S-07-0444 EFB,
2009 WL 700242, at *4 (E.D. Cal. Mar.13, 2009) (magistrate
judge’s order) (although not citing Brown, relying on this
language); Robinson v. Heyward, No. CIV S-07-0729 JAM DAD, 2008
WL 2875794, at *3 (E.D. Cal. July 24, 2008) (magistrate judge’s
findings and recommendations) (although not citing Brown, relying
on this language).
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suffice, defendants have presented supplemental evidence to
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support their objections to the magistrate judge’s findings and
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recommendations.
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additional remedies were in fact available to plaintiff beyond an
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investigation into his allegations of staff misconduct.
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evidence would contradict the Bulletin and portions of the
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responses.
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an appeal to the Director’s level might have netted additional
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relief to Brown, he produced no evidence--which would have had to
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The supplemental evidence attempts to show that
This
See Brown, 422 F.3d at 939 (“While Valoff argues that
contradict his own directives--that it could have.”).
In a supplemental declaration, D. Foston, Chief of the
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Inmate Appeals Branch (“IAB”) of the Department, states that a
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director’s level response could have provided the following four
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forms of relief from IAB: (1) a recommendation that the inmate be
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transferred if not appropriately housed, (2) an order that the
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institution amend its strip search policy or holding cell policy
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to come into compliance with regulation or policy, (3) an order
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for another investigation to ensure all issues and allegations
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were appropriately addressed if the IAB found that the staff
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misconduct investigation was conducted improperly or was
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insufficient, and (4) a referral for a mental health evaluation
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if it had not already been completed.
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Findings & Recommendations on Defs.’ MTD Attachment (Supplemental
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Foston Decl. on Defs.’ MTD) ¶ 8 (Docket No. 49).)
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(Defs.’ Objections to
With respect to transferring plaintiff if not
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appropriately housed, the Ninth Circuit’s description of the
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evidence in Brown is instructive:
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It is clear, for example, from the Department’s general
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directives and from its responses in this case, that only
after the staff misconduct investigation, through which
Brown’s allegations were considered, would the Department
of Corrections have determined whether Valoff’s transfer
to another institution was appropriate. Those documents
emphasize that all investigations into staff misconduct
are to take place through the staff complaint process;
that the choice of relief in the event a complaint is
sustained is up to the Department; and that the results
of the staff complaint process are confidential. For
similar reasons, any transfer of Brown because of
Valoff’s behavior would depend on sustaining the
complaints about that behavior and thus could not come
through the appeals process.
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Brown, 422 F.3d at 939.
Thus, despite Foster’s supplemental
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declaration to the contrary, the evidence suggests that plaintiff
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could be transferred only through the staff complaint process,
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which plaintiff’s staff complaint initiated, and not through the
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inmate appeals process.
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That the Department’s director could have changed the
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institution’s policy on searches or holding cells or ordered a
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mental health evaluation does not prove that additional remedies
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were available because plaintiff’s grievance did not pertain to
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these subjects.
See id. at 940 (“Brown did not, however,
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complain about the pepper spray policy; rather, his complaint was
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that the policy had been violated.
As Brown’s grievance in no
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way challenged the pepper spray policy, we can conceive no reason
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the Director would reconsider that policy in response to Valoff’s
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grievance.”) (citing Booth, 532 U.S. at 736 n.4 (“Without the
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possibility of some relief, the administrative officers would
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presumably have no authority to act on the subject of the
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complaint, leaving the inmate with nothing to exhaust.”)
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(emphasis added)).
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Lastly, Foster’s statement that the director could have
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ordered an additional investigation if it determined that the
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first investigation was insufficient or improperly conducted is
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contradicted by the response at the director’s level that simply
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evaluated whether an investigation had been conducted.
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Accordingly, the moving defendants have not met their burden of
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“demonstrat[ing] that pertinent relief remained available.”
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Brown, 422 F.3d at 936-37.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
The findings and recommendations filed February 9,
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2011, are adopted, except to the extent that they rely on section
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3084.9(i) of Title 15 of the California Code of Regulations;
2.
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The moving defendants’ motion to dismiss for
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plaintiff’s failure to exhaust administrative remedies is DENIED
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as to claims that defendants Whitten, Greer, Protivinsky, and
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Brewer conducted or allowed improper searches for the purposes of
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harassment, retaliation, and deliberate indifference to
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plaintiff’s mental health in 2007 and 2008; and
3.
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This action is dismissed as against defendant Moore
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due to plaintiff’s failure to prosecute.
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DATED:
April 14, 2011
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