Byrd v. Lynn et al

Filing 90

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/28/14 recommending that defendant's motion for summary judgment 86 be granted. Plaintiff's retaliation claim against defendant Lynn be dismissed without prejudice for failure to exhaust administrative remedies prior to filing suit; and this action be closed. MOTION for SUMMARY JUDGMENT 86 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, 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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Plaintiff,

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

v.

FINDINGS AND RECOMMENDATIONS

A. FLYNN,

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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. Pending before the court is defendant’s motion for summary judgment based

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on plaintiff’s alleged failure to exhaust available administrative remedies prior to filing suit as

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

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

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amended complaint, plaintiff alleges that defendant Lynn recommended to High Desert State

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Prison’s (“HDSP”) Classification Committee that plaintiff be assigned to privilege group C.

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Plaintiff alleges that defendant Lynn falsified disciplinary records in his central file to support

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that classification decision in retaliation for plaintiff filing an inmate appeal and a petition for writ

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of mandate in state court. (Am. Compl. at 8, 10-12 & 25.)

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PROCEDURAL HISTORY
On April 10, 2013, defendant Lynn filed motion to dismiss brought pursuant to

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unenumerated Rule 12(b) of the Federal Rules of Civil Procedure arguing that plaintiff failed to

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exhaust his administrative remedies prior to filing suit as required. (Doc. No. 63) Plaintiff filed

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an opposition to the motion, and defendant filed a reply. (Doc. Nos. 68 & 69) On October 23,

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2013, the undersigned issued findings and recommendations, recommending that defendant’s

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motion to dismiss due to plaintiff’s failure to exhaust his administrative remedies be granted.

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(Doc. No. 71)

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Plaintiff filed objections to those findings and recommendations in which he argued that

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the court should excuse him from complying with the exhaustion requirement because the

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defendant thwarted his attempts to exhaust his administrative remedies with respect to his

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retaliation claim. Specifically, plaintiff argued that prison officials twice screened out an inmate

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appeal dated January 27, 2010, in which he complained of defendant Lynn’s conduct, because he

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failed to attach CDC Form 128-G to the inmate appeal. According to plaintiff, he repeatedly

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requested a copy of the appropriate CDC Form 128-G from defendant Lynn, but the defendant

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refused to provide it to him. Plaintiff attached to his objections a declaration signed under penalty

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of perjury to this effect and a copy of an inmate appeal in which he complained to prison officials

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that his counselor was refusing to provide him with a copy of the CDC Form 128-G necessary to

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pursue his inmate appeal. (Doc. No. 72)

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On December 23, 2013, the court ordered defendant Lynn to file a reply to plaintiff’s

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objections and show cause as to why plaintiff should not be excused from complying with the

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exhaustion requirement in light of his objections, sworn declaration, and exhibits. (Doc. No. 73)

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In defendant’s reply, defense counsel argued that: (1) the evidence presented in support of

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defendant’s motion to dismiss showed that plaintiff failed to bring any inmate appeals to the third

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and final level of the appeals process concerning defendant Lynn; (2) plaintiff is not permitted

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raise new theories for the first time in his objections to the court’s findings and recommendations;

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and (3) even if defendant Lynn had prevented plaintiff from receiving the documentation

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necessary to submit his inmate appeal dated January 27, 2010, plaintiff’s allegations in that
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appeal nonetheless would not have alerted prison officials to the wrongdoing alleged in his

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complaint. (Doc. No. 76)

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In light of the new and potentially dispositive arguments raised by both parties during the

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objection period, the court determined that further briefing from the parties on the issue of

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exhaustion was warranted. Accordingly, the court vacated its findings and recommendations and

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denied defendant’s motion to dismiss without prejudice. The court instructed the parties to

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address the following issues in any renewed motion based upon plaintiff’s failure to exhaust

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administrative remedies prior to filing suit: (1) whether plaintiff’s inmate appeal dated January

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27, 2010, included sufficient detail to put prison officials on notice of his retaliation claim against

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defendant Lynn; and (2) whether plaintiff should be excused from the exhaustion requirement

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based on defendant Lynn’s alleged efforts to thwart plaintiff’s attempts to exhaust his

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administrative remedies. (Doc. No. 77)

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On March 10, 2014, defendant Lynn filed a renewed motion to dismiss brought pursuant

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to unenumerated Rule 12(b) of the Federal Rules of Civil Procedure based on plaintiff’s alleged

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failure to exhaust his administrative remedies prior to bringing suit as required. (Doc. No. 78)

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Plaintiff filed an opposition to the motion, and defendant filed a reply. (Doc. Nos. 81 & 82)

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While defendant’s motion was pending, the Ninth Circuit decided Albino v. Baca, 747 F.3d 1162,

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1168 (9th Cir. 2014), which held that a defendant may raise the issue of proper exhaustion in

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either (1) a motion to dismiss brought pursuant to Rule 12(b)(6), in the rare event the failure to

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exhaust is clear on the face of the complaint, or (2) a motion for summary judgment. The Ninth

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Circuit made clear that an unenumerated Rule 12(b) motion is no longer a proper procedural

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device for raising the issue of exhaustion in this context. See id. at 1169. Pursuant to the

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decision in Albino, on April 22, 2014, the court denied defendant’s renewed motion to dismiss

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brought pursuant to unenumerated Rule 12(b) without prejudice to the filing of a motion for

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summary judgment. (Doc. No. 85)

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As noted above, now pending before court is defendant Lynn’s motion for summary

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judgment based on plaintiff’s failure to exhaust administrative remedies prior to filing suit as

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required.
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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.’”).

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

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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).
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. See

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Albino, 747 F.3d at 1172-73. 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); Marella, 568 F.3d 1024 (excusing an

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inmate’s failure to exhaust because he did not have access to the necessary grievance forms to

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timely file his grievance).

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

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defense that defendants must plead and prove. See Jones, 549 U.S. at 216 (“[I]nmates are not

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required to specially plead or demonstrate exhaustion in their complaints.”); Albino, 747 F.3d at

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1168. A defendant may move for dismissal under Federal Rule of Civil Procedure 12(b)(6) “[i]n

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the rare event” that a prisoner’s failure to exhaust is clear on the face of the complaint. Albino,

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747 F.3d at 1168 & 1169. More typically, defendants may move for summary judgment under

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Federal Rule of Civil Procedure 56 and produce probative evidence that proves a prisoner’s

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failure to exhaust. See id. at 1166. If the undisputed evidence viewed in the light most favorable

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to the prisoner demonstrates a failure to exhaust, the court should grant defendant’s motion for

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summary judgment. On the other hand, if there are material facts in dispute, the court should

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deny defendant’s motion summary judgment. See id.

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DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND EVIDENCE

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Defense counsel has submitted a statement of undisputed facts supported by citations to

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various materials in the record. The evidence submitted by defendant Lynn in support of the

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pending motion for summary judgment establishes the following. On July 23, 2009, plaintiff

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transferred from Calipatria State Prison to HDSP. Plaintiff appeared before HDSP’s Facility D
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Unit Classification Committee for his initial review. The committee consisted of members of

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HDSP staff, including defendant Lynn. At the classification committee hearing, plaintiff was

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assigned to privilege group C because prison officials had previously found him guilty of two

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serious rules violations. (Def.’s SUDF 1-3, Doc. No. 16 at 25.)

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On October 25, 2009, plaintiff submitted an inmate appeal challenging his assignment to

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privilege group C. In the appeal, plaintiff complained that on September 23, 2009, he asked

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defendant Lynn to remove him from privilege group C because his rules violations took place

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more than 180 days before his classification hearing, and his assignment to privilege group C was

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therefore contrary to state regulations. On November 5, 2009, at the informal level of review,

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defendant Lynn denied plaintiff’s request and told him that he did not meet the requirements for

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removal from privilege group C and that he would be scheduled for a classification hearing.

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Plaintiff also filed a writ of mandamus in the Lassen County Superior Court to compel defendant

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Lynn to schedule a classification hearing. That court denied his petition as moot, finding that

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defendant Lynn had scheduled plaintiff for a classification hearing on December 8, 2009, but that

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the hearing was postponed by the committee until January 27, 2010. (Def.’s SUDF 4-8, Doc. No.

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16 at 6, 23, 26 & 34.)

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At plaintiff’s classification committee hearing on January 27, 2010, defendant Lynn

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submitted several secured housing unit term assessments to the committee to justify plaintiff’s

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placement in privilege group C. According to plaintiff, defendant Lynn altered the

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documentation provided to the committee to make it appear as though plaintiff had been

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convicted of numerous secured housing unit terms to warrant privilege group C status in

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retaliation for plaintiff having filed his inmate appeal on October 25 2009, and his writ of

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mandamus in the Lassen County Superior Court. (Def.’s SUDF 9-10, Doc. No. 16 at 8 & 11.)

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After July 23, 2009, when plaintiff transferred to HDSP, but before April 8, 2010, when

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he filed his complaint in this action, plaintiff submitted one inmate appeal to the third level of

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review that was accepted and denied (HDSP-09-01939). Plaintiff alleges that on January 27,

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2010, he attempted to submit another appeal, but defendant Lynn prevented him from pursuing it.

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In the appeal dated January 27, 2010, plaintiff requested to have allegedly false information
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corrected on state forms. (Def.’s SUDF 11-13, Doc. No. 78-3, Doc. No. 72 at 2, Doc. No. 71 at

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4-5, Doc. No. 68 at 2-3 & 7-9, Doc. No. 16 at 25, Doc. No. 1.)

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ANALYSIS

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

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for summary judgment, the court finds that plaintiff failed to properly exhaust his administrative

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remedies prior to bringing suit as required. See Woodford, 548 U.S. at 83-84 (prisoner does not

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satisfy the PLRA exhaustion requirement “by filing an untimely or otherwise procedurally

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defective administrative grievance or appeal.”).

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First, the parties do not dispute that plaintiff filed only one inmate appeal, HDSP-09-

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01939, which he pursued through the third level of review after he transferred to HDSP and

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before he filed his complaint in this civil action. As defense counsel contends, and as plaintiff

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appears to concede, inmate appeal HDSP-09-01939 did not put prison officials on notice of

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plaintiff’s claims that defendant Lynn had retaliated against plaintiff for exercising his First

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Amendment rights. (Def.’s Mem. of P. & A. at 5, Pl.’s Opp’n Mem. of P. & A. at 9.) Rather, the

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complaint that plaintiff expressed in that inmate appeal concerned Lieutenant Dharlingue’s

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disciplinary sanctions imposed against plaintiff for purportedly refusing to accept a cellmate. 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 or with plaintiff’s placement in privilege group C and

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therefore did not give prison officials a fair opportunity to respond to the claims he has now

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presented against the moving defendant in this civil rights action.

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The court now turns to the issue of whether plaintiff should be excused from complying

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with the exhaustion requirement. Construing the facts in the light most favorable to plaintiff, on

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January 27, 2010, plaintiff attempted to submit an appeal concerning defendant Lynn’s alleged

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falsification of information on a state document. On the inmate appeal form where plaintiff is

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instructed to “Describe Problem”, he stated in that inmate appeal as follows:

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I am writing this 602 against Correctional Counselor A. Lynn CCI
for falsification of information on a state document. She wrote a
CDC 629 SHU Term Assessment against me for a SHU wich [sic]
never occurred. See Attached CDC 629. Also see attached CDC
114D lock up order for 6-30-08 and assessment of the Rule
Conduct Violation which was a Division (E) offense non Shuable
Offense. CCI A. Lynn has altered my file to make it appear as
something that did not happen on 6-30 wich [sic] constitutes
falsification of information of a state document 3021 Title 15[.]

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On the form where plaintiff is instructed to state the “Action Requested”, he wrote:

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I would like this false information corrected. This 602 regarding
3021 CCR Title 15 falsification of information, not classification.
See attached sheet.

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(Doc. No. 60 at 7.) As noted above, prison officials twice screened out plaintiff’s inmate appeal

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because he failed to attach CDC Form 128-G to it. Plaintiff contends that defendant Lynn refused

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to provide him with the appropriate CDC Form 128-G and thereby prevented him from pursuing

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this inmate appeal. (Pl.’s Opp’n Mem. of P. & A. at 2-8.)

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

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prison officials render administrative remedies effectively unavailable. See Sapp, 623 F.3d at

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822; Nunez, 591 F.3d at 1224. Cf. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (“The

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obligation to exhaust ‘available’ remedies persists as long as some remedy remains ‘available.’

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Once that is no longer the case, then there are no ‘remedies . . . available,’ and the prisoner need

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not further pursue the grievance.”). Here, however, even if defendant Lynn had provided plaintiff

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with the appropriate CDC Form 128-G and/or prison officials had not screened out plaintiff’s

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inmate appeal, and plaintiff pursued the inmate appeal in question through the third level of

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review, plaintiff’s allegations therein would not have exhausted the constitutional claims he raises

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in this civil rights action. See, e.g., Sapp, 623 F.3d at 823-24 (“inmate must establish . . . that he

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actually filed a grievance or grievances that, if pursued through all levels of administrative

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appeals, would have sufficed to exhaust the claim he seeks to pursue in federal court.”); Nunez,

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591 F.3d at 1225 (“Nunez’s grievance sufficed to state his Fourth Amendment claim by “‘alerting

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the prison to the nature of the wrong for which redress [was] sought.’”).

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Specifically, plaintiff’s inmate appeal of January 27, 2010, would not have put prison

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officials on notice of his claim that defendant Lynn falsified plaintiff’s classification committee

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documents in retaliation for plaintiff’s filing of a prior inmate appeal and a petition for writ of

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mandamus in the Lassen County Superior Court. For example, plaintiff’s January 27, 2010,

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inmate appeal included no allegations with regard to his constitutionally protected conduct. Nor

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did that inmate appeal mention or suggest any retaliatory motive on defendant Lynn’s part. See,

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e.g., Walton v. Hixson, No. CIV S-09-1246 GEB CKD, 2011 WL 6002919 at *2 (E.D. Cal. Nov.

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30, 2011) (finding that a prisoner’s inmate grievance complaining about prison official’s

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interference with his praying was not sufficient to alert prison to plaintiff’s claim that the alleged

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interference was in retaliation for plaintiff submitting a grievance against the official); Simpson v.

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Feltsen, No. 2:09-cv-00302 MSB, 2010 WL 5288181 at *5 (E.D. Cal. Dec. 17, 2010) (assuming

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that a prisoner’s grievance was improperly screened out, even if it had been accepted and pursued

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it would not have sufficed to exhaust a retaliation claim because it made no mention of the

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prisoner’s exercise of his First Amendment rights that allegedly precipitated the prisoner’s

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retaliatory transfer); Martinez v. Adams, No. 1:09cv00899 LJO DLB, 2010 WL 3912359 at *5

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(E.D. Cal. Oct. 5, 2010) (finding a failure to exhaust a retaliation claim because plaintiff’s

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grievances did not “mention retaliation or set forth facts that would alert a prison official to

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retaliatory conduct for protected conduct”); Gonzalez v. Doe, No. 07-CV-1962 W (POR), 2010

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WL 3718873 at *5 (S.D. Cal. Sept. 20, 2010) (“Even construed liberally, Plaintiff’s comments in

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his Director’s level appeal cannot be read as anything more than claims regarding the seriousness

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of having false confidential information in a prison file, which does not provide notice that the

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grievances included retaliation.”); Trevino v. McBride, No. 1:08-cv-1649 AWI DLB PC, 2010

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WL 2089660 at *3 (E.D. Cal. May 21, 2010) (finding plaintiff had “not sufficiently alerted the

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prison officials to a problem regarding retaliatory acts by correctional officers . . . as there is no

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linkage mentioned between previously filed lawsuits and the Defendants’ deprivation of his

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property.”); Thomas v. Sheppard-Brooks, No. 1:06-cv-01332 LJO YNP PC, 2009 WL 3365872 at

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*5 (E.D. Cal. Oct. 16, 2009) (prisoner’s inmate grievance did not provide prison officials with

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notice of retaliation claim because he failed to notify prison officials that his cell housing without
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light was retaliatory). This case is no different than those which resulted in the decisions cited

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above.

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In sum, even viewing the undisputed evidence in the light most favorable to plaintiff that

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evidence establishes that plaintiff failed to exhaust administrative remedies prior to filing suit as

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required. The court further finds that in light of the evidence produced on summary judgment

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plaintiff has failed to establish that the court should excuse him from complying with the

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exhaustion requirement. Accordingly, defendants’ motion for summary judgment should be

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granted.

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CONCLUSION

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendant’s motion for summary judgment (Doc. No. 86) be granted;

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2. Plaintiff’s retaliation claim against defendant Lynn be dismissed without prejudice for

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failure to exhaust administrative remedies prior to filing suit; and

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3. 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 seven days after service of the objections. The parties

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

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

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Dated: October 28, 2014

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DAD:9
byrd0839.57(2)

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