Byrd v. Lynn et al

Filing 71

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/23/13 RECOMMENDING that 63 MOTION to DISMISS be granted; and this action be closed. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOSEA BYRD,

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No. 2:10-cv-0839 KJM DAD P
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

A. LYNN,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under

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42 U.S.C. § 1983. This matter is now before the court on defendant Lynn’s motion to dismiss

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brought pursuant to unenumerated Rule 12(b) of the Federal Rules of Civil Procedure due to

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plaintiff’s alleged failure to exhaust his administrative remedies prior to bringing suit as required.

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Plaintiff has filed an opposition to the motion, and defendant has filed a reply.

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BACKGROUND
Plaintiff is proceeding on his amended complaint against defendant Lynn. In that

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amended complaint, plaintiff alleges that on August 5, 2009, defendant Lynn recommended to

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High Desert State Prison’s (“HDSP”) Classification Committee that plaintiff be assigned to

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Privilege Group C. Plaintiff alleges that defendant Lynn falsified disciplinary records in his

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central file to support that classification decision in retaliation for plaintiff filing an inmate appeal

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and a petition for writ of mandate in state court. (Am. Compl. at 8, 10-12 & 25.)
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THE EXHAUSTION REQUIREMENT
By the Prison Litigation Reform Act of 1995 (“PLRA”), Congress amended 42 U.S.C. §

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1997e to provide that “[n]o action shall be brought with respect to prison conditions under section

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1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.

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§ 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life, whether

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they involve general circumstances or particular episodes, and whether they allege excessive

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force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

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The United States Supreme Court has ruled that exhaustion of prison administrative

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procedures is mandated regardless of the relief offered through such procedures. See Booth v.

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Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading

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futility or other exceptions into the statutory exhaustion requirement. See id. at 741 n.6.

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Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion

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requirement by filing an untimely or otherwise procedurally defective administrative grievance or

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appeal. See Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). “[T]o properly exhaust administrative

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remedies prisoners ‘must complete the administrative review process in accordance with the

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applicable procedural rules,’ [] - rules that are defined not by the PLRA, but by the prison

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grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S.

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at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison

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system’s requirements ‘define the boundaries of proper exhaustion.’”) (quoting Jones, 549 U.S. at

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218).

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In California, prisoners may appeal “any policy, decision, action, condition, or omission

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by the department or its staff that the inmate or parolee can demonstrate as having a material

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adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).

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Most inmate appeals progress through three levels of review. See id. § 3084.7. The third level of

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review constitutes the decision of the Secretary of the California Department of Corrections and

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Rehabilitation and exhausts a prisoner’s administrative remedies. See id. § 3084.7(d)(3). A

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California prisoner is required to submit an inmate appeal at the appropriate level and proceed to
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the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.

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2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).

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The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative

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defense. See Jones, 549 U.S. at 216 (“[I]nmates are not required to specially plead or

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demonstrate exhaustion in their complaints.”); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th

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Cir. 2003). The defendants bear the burden of raising and proving the absence of exhaustion.

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Wyatt, 315 F.3d at 1119. That burden, however, is “very low.” Albino v. Baca, 697 F.3d 1023,

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1031 (9th Cir. 2012). The defendants need only show the existence of a grievance procedure that

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plaintiff did not use. Id. (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)

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and Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005)).
A prisoner may be excused from complying with the PLRA’s exhaustion requirement if

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he establishes that the existing administrative remedies were effectively unavailable to him.

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Albino, 697 F.3d at 1031. For example, where prison officials improperly screen out inmate

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grievances, they render administrative remedies effectively unavailable. See Sapp v. Kimbrell,

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623 F.3d 813, 823 (9th Cir. 2010). In such a case, “the inmate cannot pursue the necessary

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sequence of appeals . . . .” Id. See also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)

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(excusing an inmate’s failure to exhaust because he was precluded from exhausting

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administrative remedies by a warden’s mistaken instruction to him that a particular unavailable

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document was needed for him to pursue his inmate appeal).

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If the district court concludes that the prisoner has not exhausted administrative remedies

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and is not excused from doing so, “the proper remedy is dismissal of the claim without

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prejudice.” Wyatt, 315 F.3d at 1120. See also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir.

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2005). On the other hand, “if a complaint contains both good and bad claims, the court proceeds

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with the good and leaves the bad.” Jones, 549 U.S. at 221.

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DISCUSSION
Based on the evidence presented by both parties in connection with the pending motion to

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dismiss, the court finds that plaintiff failed to properly exhaust his administrative remedies prior

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to bringing suit as required. See Woodford, 548 U.S. at 83-84 (a prisoner does not satisfy the
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PLRA exhaustion requirement “by filing an untimely or otherwise procedurally defective

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administrative grievance or appeal.”). Specifically, plaintiff filed one inmate appeal, referred to

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as HDSP-09-01939, which he pursued through the third level of review after he transferred to

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HDSP and before he filed his complaint in this civil action. (Def.’s Mot. to Dismiss (ECF No.

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63), Lozano Decl. Ex. A.) However, as defense counsel observes, the complaint that plaintiff

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expressed in that inmate appeal was regarding Lieutenant Dharlingue’s disciplinary sanctions

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imposed against plaintiff for purportedly refusing to accept a cellmate and not about defendant

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Lynn’s alleged retaliatory conduct that plaintiff complains of in this civil rights action. (Id.) The

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Ninth Circuit has made clear that the primary purpose of an inmate appeal is “to notify the prison

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of a problem.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). Plaintiff’s allegations set

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forth in inmate appeal HDSP-09-01939 could not have alerted prison officials to any problem he

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allegedly experienced with defendant Lynn and therefore did not give prison officials a fair

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opportunity to respond to the claims he has now presented against the moving defendant in this

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civil rights action.

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In his opposition to defendant Lynn’s pending motion to dismiss, plaintiff argues that in

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addition to inmate appeal HDSP-09-01939, he also filed a separate inmate appeal regarding

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defendant Lynn’s alleged retaliatory conduct, but prison officials interfered with his efforts to

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pursue that complaint through the inmate appeals process thereby rendering administrative

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remedies effectively unavailable to him. (Pl.’s Opp’n to Def.’s Mot. to Dismiss (ECF No. 68) at

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2-3 & Pl.’s Decl. & Attachs.) Plaintiff has attached to his opposition a copy of the inmate appeal

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upon which he relies in support of his argument as well as two appeal screening forms he

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received from prison officials informing him that the inmate appeal in question was incomplete

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because he did not attach the necessary supporting documents. (Id.) Plaintiff is correct that the

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court may excuse a prisoner from complying with the exhaustion requirement when prison

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officials render administrative remedies effectively unavailable. See Albino, 697 F.3d at 1034.

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In this case, however, plaintiff’s evidence submitted to the court does not establish the he should

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be excused from complying with the exhaustion requirement. Rather, plaintiff’s exhibits show

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that prison officials twice screened out his inmate appeal in which he complained of defendant
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Lynn’s actions because plaintiff failed to attach CDC Form 128-G Classification Committee

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documents to it. Under the governing California regulations, prison officials are entitled to screen

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out an inmate appeal if it is missing the necessary supporting documents. See Cal. Code Regs. tit.

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15, §§ 3084.3(c)(5), 3084.6(b)(7). As noted above, it is the state’s regulations which govern the

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determination of whether proper exhaustion has been accomplished. See Jones, 549 U.S. at 218;

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Woodford, 548 U.S. at 88); Marella, 568 F.3d at 1027.

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Based on the evidence before the court, the court finds that this is not a case where prison

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officials engaged in misconduct in handling plaintiff’s inmate appeals, told plaintiff that there

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were no available administrative remedies, or pointed plaintiff in a direction that would cause him

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to fail in his attempts to properly exhaust his administrative remedies See Albino, 697 F.3d at

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1034. Nor is this a case where prison officials refused to provide plaintiff with the required

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grievance forms, failed to respond to properly-filed grievances, or threatened him with retaliation

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for filing grievances. See id. at 1034, n.7. Here, plaintiff simply failed to re-submit his appeal

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with the necessary supporting documents as he was twice instructed to do by prison officials. The

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exceptions to the exhaustion requirement apply only when prison officials take affirmative

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actions to prevent a prisoner from properly exhausting his administrative remedies prior to filing

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suit. See id. at 1034. Plaintiff has not demonstrated that prison officials delayed or thwarted his

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efforts to exhaust his retaliation claim or that he took all “reasonable and appropriate steps” and

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engaged “a good faith effort” to exhaust his administrative remedies with respect to his claim.

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See id. at 1035; Nunez, 591 F.3d 1224.

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For all of the foregoing reasons, the court finds that defendant Lynn has carried his burden

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of raising and proving the affirmative defense of failure to exhaust administrative remedies prior

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to filing suit. See Jones, 549 U.S. 216; Wyatt, 315 F.3d at 1117-19. Accordingly, defendant’s

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motion to dismiss should be granted.

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CONCLUSION

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Accordingly, IT IS HEREBY RECOMMENDED that

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1. Defendant’s motion to dismiss (Doc. No. 63) be granted; and

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2. This action be closed.
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These findings and recommendations are submitted to the United States District Judge

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

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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: October 23, 2013

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DAD:9
byrd0839.57

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