Abel v. Martel et al

Filing 40

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/18/11 RECOMMENDING that Defendant Martel, Long, Sauceda, Lackner, Barroga and Childresss 32 motion to dismiss be denied in part and granted in part; and Defendant Barroga be dismissed from this action. Motion referred to Judge John A. Mendez; Objections to F&R due within 21 days. (Dillon, 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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JAMES ABEL,

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Plaintiff,

No. CIV S-09-1749 JAM CKD P

vs.
MIKE MARTEL, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a California prisoner proceeding with counsel. He has two claims.

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The first arises under 42 U.S.C. § 1983 and the Free Exercise Clause of the First Amendment.

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The second arises under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

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Defendants Martel, Long, Sauceda, Lackner, Barroga and Childress (defendants) are current or

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former employees of the California Department of Corrections and Rehabilitation (CDCR) at

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Mule Creek State Prison (Mule Creek). They have filed a motion to dismiss for failure to

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exhaust administrative remedies.1

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A motion to dismiss for failure to exhaust administrative remedies prior to filing
suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d

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Defendants Walker, Rodriguez and Kaplan are not parties to the motion to dismiss as
they have not been served with process.
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1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust non-judicial

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remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at

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1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies,

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the proper remedy is dismissal of the claim without prejudice. Id.

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The exhaustion requirement is rooted in the Prison Litigation Reform Act, which

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provides that “[n]o action shall be brought with respect to prison conditions under section 1983

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of this title, or any other federal law . . . until such administrative remedies as are available are

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exhausted.” 42 U.S.C. § 1997e(a). CDCR regulations provide administrative procedures in the

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form of one informal and three formal levels of review to address plaintiff’s claims. See Cal.

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Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a

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prisoner has received a “Director’s Level Decision,” or third level review, with respect to his

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issues or claims. Cal. Code Regs. tit. 15, § 3084.5.

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Administrative remedies must be “properly” exhausted which means use of all

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steps put forward by the agency. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Also, “proper

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exhaustion demands compliance with an agency’s deadlines and other critical procedural rules

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because no adjudicative system can function effectively without imposing some orderly structure

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on the course of its proceedings.” Id. at 90-91.

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The specificity required in grievances is dictated by the terms of the prison’s own

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grievance process. Jones v. Bock, 549 U.S. 199, 218 (2007). Absent prison regulations to the

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contrary “‘a grievance suffices if it alerts the prison to the nature of the wrong for which redress

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is sought.’” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) quoting Strong v. David, 297

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F.3d 646, 650 (7th Cir. 2002). Generally speaking, grievances need not include theories of legal

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relief or legal terminology and need not “contain every fact necessary to prove each element of an

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eventual legal claim.” Id. There is no requirement that all defendants named in subsequent

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litigation be named in a prison grievance. Bock, 549 U.S. at 217.

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Defendants bear the burden of proving plaintiff’s failure to exhaust. Wyatt, 315
F.3d at 1119.

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In his complaint, plaintiff alleges defendants denied him the ability to practice

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Wicca2 in several respects while incarcerated at Mule Creek. Defendants assert plaintiff

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exhausted administrative remedies with respect to two separate grievances which concern his

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religious practice:

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1. MCSP-08-01367

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In this grievance, which was submitted on May 29, 2008, plaintiff complained that

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Pastor Barham (who is not a defendant is this action), and defendant Long did not allow him to

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purchase certain items used for exercise of Wicca. The precise nature of the items is not clear

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but some, if not all of the items were available at plaintiff’s prison for group use under the terms

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of something called the “Technical Reference Manual.” Plaintiff indicates he required the items

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for personal use as Wicca is mostly a “solo faith.” Further, plaintiff has health concerns,

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including the fact that he takes heat sensitive medication, which require that he practice his

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religion in his cell and not outside with the other Wiccans. A “Director’s Level Decision” was

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issued with respect to this grievance on November 17, 2008.

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2. MCSP 09-1289

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Here, in a grievance submitted May 15, 2009, plaintiff alleges, among other

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things, that on April 27, 2009, defendants Sauceda, Childress and an unidentified correctional

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officer searched plaintiff’s cell and confiscated items plaintiff used to exercise his religion

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including three “decorative ceremonial wands,” two chalices and a crystal. Plaintiff claims this

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was done in retaliation for plaintiff filing complaints against prison staff. A “Director’s Level

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Decision” was issued with respect to this grievance on December 17, 2009.

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According to Wikipedia, “Wicca, also known as Pagan Witchcraft, is a Pagan religious
movement.”
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Plaintiff agrees that the two grievances identified above are the only grievances

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pertaining to claims presented in plaintiff’s amended complaint which were addressed at the

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“Director’s Level.” Near the end of plaintiff’s opposition to defendants’ motion to dismiss,

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counsel for plaintiff indicates “[i]t has long been plaintiff’s assertion . . . that he was prevented

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by prison staff from pursuing grievances on [other claims appearing in plaintiff’s amended

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complaint].” Counsel for plaintiff presents no evidence in support of this. Counsel indicates he

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wrote plaintiff attempting to obtain such evidence, but plaintiff has not provided any. Counsel

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speculates this could be because plaintiff was not provided with writing materials as plaintiff has

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complained about that in the past. The court might pay more mind to counsel’s assertions if

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counsel had exhausted other avenues of communication with plaintiff such as attempting to

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phone plaintiff or visit him in person. As it stands, counsel’s assertions are speculative.

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Turning to the allegations in plaintiff’s amended complaint, it is clear plaintiff has
exhausted administrative remedies with respect to the following claims:

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1. Defendants Martel, Lackner and Long denied plaintiff the ability to purchase

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and personally possess religious items which were approved in the “Technical Reference

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Manual” for group worship only in violation of the First Amendment and RLUIPA. While not

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all of these defendants are named in grievance MCSP-08-01367, CDCR was put on notice

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through that grievance of the essential nature of plaintiff’s claims; plaintiff was being denied

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certain items for personal worship as opposed to group worship. Furthermore, had he named all

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of the defendants identified above in grievance MCSP-08-01367, it is unlikely the response to the

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grievance would have been any different.

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2. On April 27, 2009, defendants Sauceda and Childress confiscated religious
items from plaintiff in violation of the First Amendment and RLUIPA.

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It is equally clear that plaintiff has not exhausted administrative remedies with

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respect to any claim arising in part from any of the following allegations appearing in plaintiff’s

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amended complaint because the allegations were never presented to CDCR through the prisoner

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grievance process:

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1. Plaintiff suffered retaliation for exercise of his religion.

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2. Plaintiff was denied access to religious publications.

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3. Plaintiff was denied adequate space to perform religious rituals and

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ceremonies.

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4. Plaintiff was prevented from manufacturing “implements of his faith.”

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5. Plaintiff was denied a “Wicca Sponsor.”

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6. Plaintiff was denied adequate seating at Wicca rituals or ceremonies.

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7. Plaintiff was denied night time Wicca services.

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8. The removal of herbs, vegetables and fruits from the “Wicca grounds on or

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about July 13, 2009.”

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9. Defendant Martel denying plaintiff mail in March of 2009.

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10. Defendant Martel disregarding book orders.

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11. Defendant Barroga referring to plaintiff as a “pedofile.”

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12. All allegations appearing in paragraph 40 of plaintiff’s amended complaint

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concerning a cell search occurring in July of 2009.

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Based on the foregoing, the court will recommend that plaintiff be permitted to

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proceed on the two claims identified above and that all other claims against defendants be

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dismissed.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendant Martel, Long, Sauceda, Lackner, Barroga and Childress’s May 11,

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2011 motion to dismiss be denied in part and granted in part as follows:
A. Denied with respect to the following claims:

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1. Defendants Martel, Lackner and Long denied plaintiff the

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ability to purchase and posses religious items which were approved
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in the “Technical Reference Manual” for group worship only in

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violation of the First Amendment and RLUIPA.

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2. On April 27, 2009, defendants Sauceda and Childress

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confiscated religious items from plaintiff in violation of the First

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Amendment and RLUIPA.

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B. Granted in all other respects resulting in all other claims against

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defendants Martel, Long, Sauceda, Lackner, Barroga and Childress being

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dismissed for failure to exhaust administrative remedies.

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2. Defendant Barroga be dismissed from this action.

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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 twenty-

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one 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: November 18, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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