Jones v. Jenkins et al

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 02/22/13 recommending that defendants Caron's and Colvin's motion to dismiss 18 in which defendant Jenkins joined 19 be granted; and this action be dismissed. MOTION to DISMISS 18 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN JONES,
Plaintiff,

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No. 2:09-cv-1373 GEB AC P

vs.
CHRISTOPHER JENKINS, et al.,
Defendants.

FINDINGS AND RECOMMENDATIONS
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Plaintiff, a state prisoner proceeding pro se, filed an action pursuant to 42 U.S.C.

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§ 1983. Defendants Caron and Colvin filed a motion to dismiss for failure to exhaust

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administrative remedies pursuant to non-enumerated Fed. R. Civ. P. 12(b) (ECF No. 18) on

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August 9, 2012. Defendant Jenkins filed a notice of joinder in the motion (ECF No. 19) on

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October 5, 2012. Plaintiff has not opposed the motion.

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Local Rule 230(l) provides in part: “Failure of the responding party to file written

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opposition or to file a statement of no opposition may be deemed a waiver of any opposition to

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the granting of the motion . . . .” On June 12, 2012 (ECF No. 15), plaintiff was advised of the

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requirements for filing an opposition to a non-enumerated Rule 12(b) motion to dismiss. Wyatt

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v. Terhune, 315 F.3d at 1120 n.14. Defendants provided contemporaneous Wyatt notice with
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their motion. Woods v. Carey, 684 F.3d 934 (2012. In the order of June 12, 2012, plaintiff was

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advised that failure to file a written opposition to such a motion may be considered by the court

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to be a waiver of opposition to the motion.

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Accordingly, plaintiff’s failure to oppose should be deemed a waiver of

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opposition to the granting of the motion. In the alternative, the court has reviewed the motion

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and finds that it has merit.

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In his complaint, plaintiff alleges the defendants, on September 20, 2008,

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subjected him to excessive force in violation of the Eighth Amendment at California State

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Prison-Sacramento (CSP-SAC). See Complaint. The complaint was filed on May 18, 2009.

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The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires that a prisoner

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complete the administrative review process in accordance with the applicable procedural rules.

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Woodford v. Ngo, 548 U.S. 81 (2006). In order for California prisoners to exhaust

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administrative remedies, they must proceed through several levels of appeal: 1) informal

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resolution, 2) formal written appeal on a CDC 602 inmate appeal form, 3) second level appeal to

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the institution head or designee, and 4) third level appeal to the Director of the California

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

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Cal. Code Regs. tit. xv, § 3084.5). A final decision from the Director’s level of review satisfies

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the exhaustion requirement. Id. at 1237-38. An untimely or otherwise procedurally defective

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appeal will not satisfy the exhaustion requirement. Woodford v. Ngo, 548 U.S. at 84. Moreover,

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42 U.S.C. § 1997e(a) provides that no action shall be brought with respect to prison conditions

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until such administrative remedies as are available are exhausted. McKinney v. Carey, 311 F.3d

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1198 (9th Cir. 2002).

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Defendants have produced a declaration from CSP-SAC appeals coordinator K.

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Daly attesting that no inmate appeals were submitted by plaintiff after September 20, 2008

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resulting in a first or second level decision prior to May 18, 2009. ECF No. 18-2. J. D. Lozano,

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chief of the office of appeals, declares that records indicate that plaintiff submitted no appeal at
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the third level after September 20, 2008 that received a decision before May 18, 2009. This

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showing satisfies defendants’ burden of raising and proving non-exhaustion. Wyatt, 315 F.3d at

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1119. The undersigned accordingly finds that the motion has merit and should be granted on

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that alternative basis, as well as on grounds of plaintiff’s failure to oppose.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendants Caron’s and Colvin’s motion to dismiss (ECF No. 18), in which

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defendant Jenkins joined (ECF No. 19) be granted; and

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2. This action be dismissed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 22, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:009
jone1373.46

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