Shavers v. Clark, et al

Filing 39

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/28/2011 RECOMMENDING that the 13 motion to dismiss be granted. This case be closed. Motion referred to Judge John A. Mendez. Objections to F&R due within 21 days. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE LEE SHAVERS, Jr.

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Plaintiff,

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vs.

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No. CIV S-10-1001 JAM CKD P

D. CLARK, et al.

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Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action

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under 42 U.S.C. § 1983. He alleges that defendants Clark, Robertson and Grannis retaliated

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against him for attempting to file a prison grievance, thus violating his First Amendment right to

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free speech. The defendants have filed a motion to dismiss, arguing that the plaintiff failed to

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exhaust his administrative remedies.

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I. Exhaustion standard
A motion to dismiss for failure to exhaust administrative remedies prior to filing

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suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d

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1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust non-judicial

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

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1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies,
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the proper remedy is dismissal of the claim without prejudice. Id.

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The exhaustion requirement is rooted in the Prison Litigation Reform Act

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(PLRA), which provides that “[n]o action shall be brought with respect to prison conditions

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under section 1983 of this title, . . . until such administrative remedies as are available are

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exhausted.” 42 U.S.C. § 1997e(a). The California Department of Corrections and

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Rehabilitation’s (CDCR) regulations provide administrative procedures in the form of one

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

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tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a prisoner has

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received a “Director’s Level Decision,” or third level review, with respect to his issues or claims.

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Cal. Code Regs. tit. 15, § 3084.5.

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Under CDCR regulations, an inmate must file his prisoner grievance within

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fifteen days of the events grieved.1 If a plaintiff failed to exhaust available administrative

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remedies by filing a late grievance, his case must be dismissed. Woodford v. Ngo, 548 U.S. 81

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(2006). Exhaustion during the pendency of the litigation will not save an action from dismissal.

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McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). Exhaustion “‘means using all steps

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that the agency holds out, and doing so properly....’” Woodford, 548 U.S. at 90 (citation

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omitted). Therefore, an inmate must pursue a grievance through every stage of the prison’s

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administrative process before a civil rights action is filed, unless he can demonstrate a step was

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not available to him.

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Defendants bear the burden of proving plaintiff’s failure to exhaust. Wyatt, 315

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F.3d at 1119. The court resolves all ambiguities in favor of the non-moving party. Estelle v.

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Gamble, 429 U.S. 97, 106 (1976).

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California regulations do not require an inmate to specifically identify a prison official
in a grievance. Therefore an inmate need not name a particular individual during the grievance
process in order to name that person as a defendant and meet the PLRA’s exhaustion requirement
when he files suit. See Jones v. Bock, 549 U.S. 199, 218-219 (2007); Butler v. Adams, 397 F.3d
1181, 1183 (9th Cir. 2005).
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II. Analysis

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The plaintiff alleges in his complaint that on July 30, 2009, “several unknown

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state correctional officers” intentionally allowed several other inmates at High Desert State

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Prison (HDSP) “out of their cells at which point me and my brother [were] assaulted by several

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inmates.” Complaint at 3.2 Plaintiff avers that he was injured in the assault, and he characterizes

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the incident as a “failure to protect me from harm by several unknown officers[.]” Id. The

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complaint then states that on October 1, 2009, defendants Clark, Robertson and Grannis

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“intentionally retaliated against me by refusing to file my (timely) 602 appeal [and] 832.5

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citizens complaint[.]”3 Complaint at 4. Although the complaint is not explicit in saying so,

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presumably plaintiff was attempting to file grievances concerning the assault of July 30. The

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complaint thus alleges two constitutional violations: (1) failure to protect plaintiff from the

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assault of July 30, averred against unknown defendants, and (2) retaliation for attempting to file a

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grievance or complaint about the assault, averred against defendants Clark, Robertson and

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Grannis. Insofar as the court’s screening order allowed service only against the named

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defendants, the claim of retaliation is the sole cause of action remaining in this case.

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Defendants submit two sworn declarations in support of their argument that

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plaintiff did not exhaust his retaliation claim. First, they submit the affidavit of P. Stassi, an

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Appeals Coordinator at HDSP at the time plaintiff says he attempted to file a grievance about the

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assault. Stassi states that HDSP appeal records show that on November 6, 2009, inmate Shavers

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submitted an appeal about the assault, but it was returned because it did not state the date of the

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The court refers to the page numbers assigned by the court’s CM/ECF system, where
applicable.
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“602 appeal” and “832.5 citizens complaint” refer to two different vehicles for
complaining about a peace officer’s conduct. The former is the CDCR’s internal procedure by
which an inmate brings a grievance to the attention of prison officials. The latter is created by
California Penal Code § 832.5, which requires “[e]ach department or agency in this state that
employs peace officers [to] establish a procedure to investigate complaints by members of the
public against the personnel of these departments or agencies[.]”
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incident. See Decl. of P. Stassi at ¶ 5 (Docket No. 13-1). When plaintiff re-filed the grievance

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on November 13 and included the date of the assault, it was screened out as untimely. Id. Stassi

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also states that plaintiff “did not submit any grievances in 2009 that the appeals office at HDSP

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accepted for review.” Id. at ¶ 4.

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Defendants also submit the sworn declaration of D. Foston, who is the Chief of

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the Inmate Appeals Branch (IAB) for CDCR. He states that plaintiff “did not submit any appeals

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that IAB accepted for Director’s Level Review in the year 2009.” Decl. of D. Foston at ¶ 4

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(Docket No. 13-2).

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Plaintiff responds that he first tried to file an appeal in September 2009. See

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Opp’n at 2 (Docket No. 29). He claims that he attempted to do so three times but was denied at

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every attempt. His explanation of his appeals process is not perfectly clear, but it suggests that

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he was essentially filing the same grievance over and over and that, at some point, “because I

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asked for the two officers’ names involved in my assault... a coup was then conspired to deny me

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of exhaustion of remedies.” Id. Since the complaint alleges that acts of retaliation occurred on

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October 1, 2009, his description of a series of attempts to file the same grievance beginning in

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September 2009 can only refer to a grievance concerning the assault of July 2009. He cannot be

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describing an attempt to file a grievance about a wholly independent claim of retaliation that,

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according to his complaint, occurred on October 1, 2009. It appears undisputed that the appeal

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based on the assault was denied as untimely, and plaintiff is strident in asserting that his attempt

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to exhaust that claim was unconstitutionally blocked in retaliation for complaining about the

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assault in the first place. But the assault is not the basis of plaintiff’s federal claim; retaliation is.

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Critically, at no point in his complaint or opposition does plaintiff say he filed a 602 appeal about

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the defendants’ alleged “coup” of retaliation.

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As stated above, defendants bear the burden of proving non-exhaustion. The

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court notes that they have not followed the well established and ordinarily easy requirement that,

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whenever possible, sworn assertions regarding a particular inmate’s exhaustion process must be
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supported with documentation of that process. See Wyatt, 315 F.3d at 1119 (noting that prison

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officials are likely to have “superior access to prison administrative records in comparison to

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prisoners”). However, the gravamen of Stassi’s and Foston’s affidavits is that plaintiff never

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filed any grievance claiming that prison officials retaliated against him for attempting to use the

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prison appeals process. Plaintiff makes no attempt to rebut or correct that assertion, so the court

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will not require the defendants to produce documentation of something that neither party claims

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happened. The court finds on the evidence before it that defendants have met their burden of

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showing the retaliation claim was not exhausted. The motion to dismiss should be granted.

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Accordingly, IT IS RECOMMENDED:

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1. The motion to dismiss (Docket No. 13) be granted for failure to exhaust
administrative remedies.

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2. This case be closed.

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These findings and recommendations are submitted to the United States District

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

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

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

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

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

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

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

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Dated: December 28, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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shav1001.57

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