Mester v. Dickinson et al

Filing 98

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/5/2011 RECOMMENDING that the 53 MOTION to Dismiss/Motion for Summary Judgment be GRANTED; that Pltfs 2009 claims against dft Miller be dismissed with prejudice; and that Pltfs 1996 and 2000 claims against dft Miller be dismissed as time-barred. Referred to District Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MORRIS MESTER,

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Plaintiff,
vs.
K. DICKINSON, et al.,

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Defendants.

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No. 2:09-cv-3307 KJM KJN P

FINDINGS AND RECOMMENDATIONS
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I. Introduction

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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with

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an action filed pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Miller’s1

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November 18, 2010 motion to dismiss filed on the grounds that plaintiff failed to exhaust

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administrative remedies, and motion for summary judgment on the grounds that undisputed facts

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show that defendant Miller did not violate plaintiff’s constitutional rights in 2009, and plaintiff’s

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pre-2009 claims are barred by the statute of limitations. After carefully reviewing the record, the

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undersigned concludes that defendant’s motion to dismiss should be granted.

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Although defendants Robertson and Sinkovich joined in the pending motion, both of
these defendants were voluntarily dismissed on December 21, 2010. (Dkt. No. 55.) The
remaining defendants, except for defendant Reed, were dismissed on October 6, 2010. (Dkt. No.
36.)
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II. Plaintiff’s Complaint

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Plaintiff contends that in 1996 defendant A. Miller allegedly told plaintiff’s

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classification committee that plaintiff was convicted of forcible rape, rather than statutory rape.

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(Dkt. No. 1 at 2.) Defendant Miller allegedly raised plaintiff’s points to 52 and requested that

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plaintiff be transferred to Pelican Bay State Prison. (Id.) Plaintiff states he was transferred to

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CMC-East, where his points were reduced to 46 and the forcible rape conviction was changed

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back to statutory rape.

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In 2000, plaintiff was transferred to California Medical Facility (“CMF”).
Plaintiff contends defendant A. Miller showed up at plaintiff’s classification hearing and again

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told the committee that plaintiff was convicted of forcible rape and allegedly blotted out

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plaintiff’s “S” suffix designating plaintiff for single cell status. Plaintiff filed a lawsuit to have

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this designation corrected, and was allegedly placed in administrative segregation (“ad seg”).

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Plaintiff states the Inspector General investigated plaintiff’s claims, plaintiff was transferred to

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Pleasant Valley State Prison, and the 1968 conviction was corrected to read statutory rape. (Id. at

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3.)

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On April 9, 2009, plaintiff was transferred back to CMF. Plaintiff alleges that he

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was returned to ad seg on April 15, 2009, based on 2000 charges that plaintiff was being over

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familiar with M.T.A. Reed. Plaintiff contends the paperwork resulting in his 2009 placement in

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ad seg was written after plaintiff arrived at CMF. Plaintiff contends defendant A. Miller was still

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a counselor at CMF, and alleges defendant Miller conspired with defendant Reed to have

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plaintiff held in ad seg. Plaintiff also contends that upon his return to CMF, defendant Miller

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allegedly changed plaintiff’s conviction back to forcible rape rather than statutory rape.

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III. Motion to Dismiss

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Defendant provided evidence regarding plaintiff’s administrative appeals. (Dkt.
No. 53-1.) Plaintiff filed a verified opposition.2 No reply was filed by defendant.

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A. Legal Standard re Exhaustion

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The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e

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to provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C.

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§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

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facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

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Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S.

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516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of

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confinement, whether they involve general circumstances or particular episodes, and whether

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they allege excessive force or some other wrong. Porter, 534 U.S. at 532.

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Exhaustion of all “available” remedies is mandatory; those remedies need not

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meet federal standards, nor must they be “plain, speedy and effective.” Id. at 524; Booth v.

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Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in

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grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532

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U.S. at 741. A prisoner “seeking only money damages must complete a prison administrative

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In his opposition, plaintiff again claims he is “incapable/incompetent” to prosecute this
action unless he is represented by counsel. However, this action was stayed from January 26,
2011, until June 24, 2011, to permit plaintiff an opportunity to demonstrate that his medical
condition prevented him from litigating this action. Plaintiff filed multiple documents during the
stay. On May 25, 2011, at the court’s direction, counsel for defendant provided a declaration by
A. Duenas, M.D., attesting to the provision of medical care to plaintiff, and declaring plaintiff
did not have an emergent medical condition and was not in need of immediate hospitalization.
(Dkt. No. 82-1 at 2.) Plaintiff confirms he is now receiving Enhanced Outpatient care from the
mental health care program. Plaintiff has provided no medical or other probative evidence
demonstrating that mental health care providers have determined plaintiff is mentally
incompetent. Plaintiff’s opposition is coherent, cites appropriate legal authorities, and is signed
under penalty of perjury. Moreover, on July 29, 2011, plaintiff filed a motion for leave to amend,
and a proposed amended complaint, demonstrating plaintiff’s recognition of the futility of his
continued prosecution against defendant Miller, and describing his wishes to proceed against
defendant Reed. (Dkt. No. 97.) The instant docket reflects plaintiff is capable of filing motions
and responding to court orders.
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process that could provide some sort of relief on the complaint stated, but no money.” Id. at 734.

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The fact that the administrative procedure cannot result in the particular form of relief requested

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by the prisoner does not excuse exhaustion because some sort of relief or responsive action may

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result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes

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of exhaustion requirement include allowing prison to take responsive action, filtering out

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frivolous cases, and creating administrative records).

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A prisoner need not exhaust further levels of review once he has either received

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all the remedies that are “available” at an intermediate level of review, or has been reliably

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informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d

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926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief

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remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief

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remained available, whether at unexhausted levels or through awaiting the results of the relief

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already granted as a result of that process. Brown, 422 F.3d at 936-37.

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As noted above, the PLRA requires proper exhaustion of administrative remedies.

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Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). “Proper exhaustion demands compliance with an

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agency’s deadlines and other critical procedural rules because no adjudicative system can

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function effectively without imposing some orderly structure on the course of its proceedings.”

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Id. at 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to

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properly exhaust. Id. The PLRA’s exhaustion requirement cannot be satisfied “by filing an

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untimely or otherwise procedurally defective administrative grievance or appeal.” Id. at 83-84.

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The State of California provides its prisoners the right to appeal administratively

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“any departmental decision, action, condition or policy which they can demonstrate as having an

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adverse effect upon their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a) (2010). It also provides

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them the right to file appeals alleging misconduct by correctional officers and officials. Id. at

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§ 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner

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must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal
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on a 602 inmate appeal form, (3) second level appeal to the institution head or designee, and

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(4) third level appeal to the Director of the California Department of Corrections and

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

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Regs. tit. 15, § 3084.5). A final decision from the Director’s level of review satisfies the

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exhaustion requirement under § 1997e(a). Id. at 1237-38.

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Non-exhaustion under § 1997e(a) is an affirmative defense which should be

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brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil

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Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court

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may look beyond the pleadings to determine whether a plaintiff exhausted his administrative

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remedies. Id. at 1119-20.

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B. Analysis re Exhaustion

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The instant complaint was filed on August 17, 2009. Therefore, plaintiff was

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required to exhaust his administrative remedies as to the instant claims on or before August 16,

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2009. Booth, 532 U.S. at 741. Defendant provided the declaration of D. Foston, Chief of the

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Inmate Appeals Branch, who provided a log of any appeals by plaintiff that were “accepted

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and/or received and screened out at the Directors’ level between January 1, 1997, and September

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17, 2010.” (Dkt. No. 53-1 at 2-3.)

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1. Log No. CMF-09-00982

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Plaintiff filed a grievance requesting accommodation with an Americans with

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Disabilities Act-compliant cell because plaintiff was having trouble pulling himself up from the

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toilet, and kept bumping his head on the metal top bunk when getting in or out of bed. (Dkt. No.

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53-1 at 10.) Plaintiff exhausted this grievance to the Director’s Level of review, but there is no

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mention of plaintiff’s claims concerning the erroneous classification or wrongful placement in ad

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seg, or any of the instant claims against defendant Miller or Reed in grievance CMF-09-00982.

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2. Log No. CMF-09-01537

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Plaintiff filed a grievance challenging his single cell status (“S” suffix) change
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resulting from the April 22, 2009 classification committee hearing. (Dkt. No. 53-1 at 12.) This

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grievance was exhausted to the Director’s Level of review on October 6, 2009, but does not

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challenge the alleged wrongful reference to “forcible rape” conviction rather than “statutory

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rape” conviction, and makes no reference to the instant claims lodged against defendant Reed.

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At the final level of review, plaintiff noted:

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I’m not raising new issues just elaborating on how I was treated at
CMF; no other prison would [have] taken my “S” suffix but
Vacaville staff because of counselor A. Miller, CCI, at Vacaville.

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N. Grannis, Chief Inmate Appeals coordinator, know that the CDC
128-G, dated 4-22-09, attached that, “stipulates that my “R” suffix
is due to P.C. 261(3) forcible rape is completely false because I
filed an appeal on 3-31-07, requesting the “R” suffix to be removed
due to (1968) statutory rape conviction; Director’s Response Sep.
29, 2007). This is only to prove show how negative and
discriminative Vacaville staff are against me by displaying such a
false charge against me proving that my single cell was taken out
of discrimination toward [plaintiff].

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(Dkt. No. 53-1 at 42.) Plaintiff’s language makes clear that he was not challenging the

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designation for his conviction, but was only challenging the removal of his single cell status

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designation. But even if this court were to liberally construe this grievance as exhausting the

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instant claims, the Director’s Level decision was rendered on October 6, 2009, after the August

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17, 2009 filing of the instant complaint. Therefore, this grievance cannot serve to exhaust

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plaintiff’s administrative remedies prior to the filing of the instant action, as required under

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Booth, 532 U.S. at 741.

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3. Log No. CMF-09-01483

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On May 28, 2009, plaintiff filed an appeal claiming that defendant Miller had

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again tampered with plaintiff’s central file by changing plaintiff’s conviction from statutory rape

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to forcible rape, which was the same allegation plaintiff had raised in a lawsuit filed in 2000.

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(Dkt. No. 53-1 at 28.) The informal and first levels of review were bypassed, and on July 13,

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2009, plaintiff’s second level review was partially granted. (Dkt. No. 53-1 at 29.) Plaintiff was

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informed that:
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When an error is made on a document contained in the central file,
the document is not removed from the file, rather the error is
corrected with an ink pen and the record is corrected with a
supplemental document.

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(Dkt. No. 53-1 at 30.) Plaintiff was advised that the error was corrected with a CDCR 128-B

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Informational Chrono dated June 10, 2009, and plaintiff was provided with a copy. (Dkt. No. 53-

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1 at 31.) Plaintiff submitted his third level appeal on August 24, 2009, but it was cancelled as

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untimely because appeals were due within fifteen working days. (Dkt. No. 53-1 at 7.)

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In any event, plaintiff submitted his third level appeal on August 24, 2009, which
was after plaintiff filed the instant action on August 17, 2009. Therefore, grievance CMF-09-

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01483 cannot serve to exhaust plaintiff’s administrative remedies prior to the filing of the instant

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action, as required under Booth, 532 U.S. at 741.

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4. Log No. HDSP-A-10-0294

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On January 18, 2010, plaintiff, while housed at High Desert State Prison, filed an

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appeal requesting a copy of the June 19, 2009 classification chrono so that plaintiff could ensure

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that any reference to forcible rape was blotted out. (Dkt. No. 53-1 at 49.) However, because this

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grievance was filed after the August 17, 2009 complaint was filed herein, it cannot serve to

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exhaust administrative remedies prior to suit as required by Booth, 532 U.S. at 741.

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Accordingly, plaintiff’s claims against defendant Miller should be dismissed

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without prejudice based on plaintiff’s failure to exhaust administrative remedies prior to filing

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this action in federal court.

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IV. Motion for Summary Judgment

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However, even assuming, arguendo, plaintiff had exhausted his claims against
defendant Miller, defendant Miller is entitled to summary judgment, as set forth below.

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A. Legal Standard for Summary Judgment

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Summary judgment is appropriate when it is demonstrated that the standard set

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forth in Federal Rule of Civil procedure 56 is met. “The court shall grant summary judgment if
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the movant shows that there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law. ” Fed. R. Civ. P. 56(a).3

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Under summary judgment practice, the moving party always bears
the initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,” which it believes demonstrate
the absence of a genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P.

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56(c).) “Where the nonmoving party bears the burden of proof at trial, the moving party need

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only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing

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Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376,

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387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 Advisory

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Committee Notes to 2010 Amendments (recognizing that “a party who does not have the trial

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burden of production may rely on a showing that a party who does have the trial burden cannot

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produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment

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should be entered, after adequate time for discovery and upon motion, against a party who fails to

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make a showing sufficient to establish the existence of an element essential to that party’s case,

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and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322.

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“[A] complete failure of proof concerning an essential element of the nonmoving party’s case

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necessarily renders all other facts immaterial.” Id. at 323.

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Consequently, if the moving party meets its initial responsibility, the burden then

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shifts to the opposing party to establish that a genuine issue as to any material fact actually exists.

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See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting

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to establish the existence of such a factual dispute, the opposing party may not rely upon the

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Federal Rule of Civil Procedure 56 was revised and rearranged effective December 10,
2010. However, as stated in the Advisory Committee Notes to the 2010 Amendments to Rule
56, “[t]he standard for granting summary judgment remains unchanged.”
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allegations or denials of its pleadings, but is required to tender evidence of specific facts in the

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form of affidavits, and/or admissible discovery material in support of its contention that such a

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dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party

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must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome

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of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

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1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433,

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1436 (9th Cir. 1987).

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In the endeavor to establish the existence of a factual dispute, the opposing party

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need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

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claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

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versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary

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judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a

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genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory

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committee’s note on 1963 amendments).

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In resolving a summary judgment motion, the court examines the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

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any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson,

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477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the

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court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587.

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Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to

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produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen

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Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir.

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1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply

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show that there is some metaphysical doubt as to the material facts. . . . Where the record taken
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as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

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‘genuine issue for trial.’” Matsushita, 475 U.S. at 586 (citation omitted).

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By order filed August 13, 2010, the court advised plaintiff of the requirements for

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opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt.

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No. 30); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v.

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Eikenberry, 849 F.2d 409 (9th Cir. 1988).

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B. Undisputed Facts

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1. Defendant Miller retired from CMF on October 19, 2007.

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2. Defendant Miller has not returned to work in any capacity at CMF since her

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2007 retirement.

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3. Defendant Miller has not handled or had access to the central prison files of

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inmates of the California Department of Corrections and Rehabilitation (“CDCR”) since her

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retirement in October of 2007.

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C. Analysis

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Plaintiff contends that in 2009 defendant A. Miller was still a counselor at CMF,

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and alleges defendant Miller conspired with defendant Reed to have plaintiff held in ad seg, and

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also that defendant Miller allegedly changed plaintiff’s conviction back to forcible rape rather

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than statutory rape. However, plaintiff adduced no probative evidence demonstrating that

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defendant Miller was employed at CMF or had access to CDCR records in 2009. Plaintiff

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failed to refute defendant Miller’s declaration to the contrary.4 Because it is factually impossible

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for defendant Miller to have participated in the 2009 allegations set forth by plaintiff, defendant

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Miller is entitled to summary judgment on plaintiff’s 2009 allegations.

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It appears the 1996 and 2000 allegations against defendant Miller were pled as

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background information. However, in the event plaintiff is attempting to litigate these earlier

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Indeed, in plaintiff’s July 26, 2011 motion to amend, plaintiff concedes he “can’t prove
otherwise.” (Dkt. No. 97 at 1.)
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claims against defendant Miller, those claims are barred by the statute of limitations.

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California law determines the applicable statute of limitations in this § 1983

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action. Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Until December 31, 2002, the

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applicable state limitations period was one year. See Jones v. Blanas, 393 F.3d 918, 927 (9th

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Cir. 2004) (citing Cal. Civ. P. Code § 340(3) (West Supp. 2002); see also Maldonado v.

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Harris, 370 F.3d 945, 954-55 (9th Cir. 2004).5 Effective January 1, 2003, the applicable

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California statute of limitations was extended to two years. See Jones, 393 F.3d at 927 (citing

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Cal. Civ. P. Code § 335.1). However, the new statute of limitations period does not apply

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retroactively. Maldonado, 370 F.3d at 955. California law also tolls for two years the limitations

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period for inmates “imprisoned on a criminal charge, or in execution under the sentence of a

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criminal court for a term less than for life.” Cal. Civ. P. Code § 352.1.6

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It appears that plaintiff became aware of the alleged wrongful acts of defendant

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Miller in 2000. Plaintiff’s awareness occurred prior to 2003; thus, the applicable statute of

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limitations period is one year because plaintiff’s knowledge preceded the 2003 extension of the

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limitations period. Maldonado, 370 F.3d at 955.

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Plaintiff is entitled to tolling of the statute of limitations period for an additional

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two years. Jones, 393 F.3d at 927 n.5. Therefore, plaintiff was required to bring his civil rights

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claims on or before 2003. Under the mailbox rule, plaintiff filed the instant action on July 25,

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2009. (Dkt. No. 1 at 56.) See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner

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filing is dated from the date prisoner delivers it to prison authorities).

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Federal courts generally apply the forum state's law regarding equitable tolling.

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Federal law governs when plaintiff's § 1983 claims accrued and when the limitations
period begins to run. Cabrera v. City of Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998).
Under federal law, “the claim generally accrues when the plaintiff ‘knows or has reason to know
of the injury which is the basis of the action.’” Id. (citations omitted).
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“The California courts have read out of the statute the qualification that the period of
incarceration must be ‘for a term less than for life’ in order for a prisoner to qualify for tolling.”
Jones, 393 F.3d at 927 n.5 (citations omitted).
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Fink, 192 F.3d at 914. Under California law, however, a plaintiff must meet three conditions to

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equitably toll a statute of limitations: (1) he must have diligently pursued his claim; (2) his

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situation must be the product of forces beyond his control; and (3) the defendants must not be

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prejudiced by the application of equitable tolling. See Hull v. Central Pathology Serv. Med.

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Clinic, 28 Cal. App. 4th 1328, 1335, 34 Cal. Rptr. 2d 175 (1994).

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Plaintiff has argued no facts demonstrating he is entitled to equitable tolling for

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part or all of the lengthy six year delay in filing in federal court. Review of the record

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demonstrates plaintiff has not diligently pursued the 1996 and 2000 claims. Thus, plaintiff is not

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entitled to equitable tolling.

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Plaintiff’s 1996 and 2000 claims against defendant Miller were filed outside the
statute of limitations period and are therefore time-barred.

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Accordingly, defendant Miller is entitled to summary judgment. This action will

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proceed as to defendant Reed, the sole remaining defendant herein.

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V. Conclusion

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IT IS RECOMMENDED THAT:

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1. Defendant Miller’s motion to dismiss (dkt. no. 53) be granted; and

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2. Defendant Miller’s motion for summary judgment (dkt. no. 53) be granted;

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3. Plaintiff’s 2009 claims against defendant Miller be dismissed with prejudice;

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and

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4. Plaintiff’s 1996 and 2000 claims against defendant Miller be dismissed as
time-barred.
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 response to the
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objections shall be filed and served within fourteen days after service of the objections. The

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

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

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DATED: August 5, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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