Hernandez v. Bouwman et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/03/11 recommending that defendants' 03/31/11 motion to dismiss be granted; and defendant Bouwman and Moreno be dismissed. MOTION to DISMISS 15 referred to Judge Lawrence K. Karlton. Objections due within 21 days. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ALVARO HERNANDEZ,
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Plaintiff,
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No. CIV S-10-2446 LKK CKD P
vs.
K. BOUWMAN, et al.,
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Defendants.
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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a California prisoner proceeding pro se with an action for violation of
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civil rights under 42 U.S.C. § 1983. He is proceeding with claims arising under the Eighth
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Amendment. See November 22, 2010 Order. Defendants Bouwman and Moreno have filed a
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motion to dismiss for failure to exhaust administrative remedies.
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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, which
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provides that “[n]o action shall be brought with respect to prison conditions under section 1983
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of this title, . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. §
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1997e(a). California Department of Corrections and Rehabilitation (CDCR) regulations provide
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administrative procedures in the form of one informal and three formal levels of review to
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address plaintiff’s claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative
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procedures generally are exhausted once a prisoner has received a “Director’s Level Decision,”
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or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All
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steps must be completed before a civil rights action is filed, unless a plaintiff demonstrates a step
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is unavailable to him; exhaustion during the pendency of the litigation generally will not save an
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action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002).
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Administrative remedies must be “properly” exhausted which means use of all
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steps put forward by the agency. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Also, “proper
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exhaustion demands compliance with an agency’s deadlines and other critical procedural rules
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because no adjudicative system can function effectively without imposing some orderly structure
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on the course of its proceedings.” Id. at 90-91. Defendants bear the burden of proving plaintiff’s
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failure to exhaust. Wyatt, 315 F.3d at 1119.1
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In his complaint, plaintiff alleges as follows:
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1. On or about June 10, 2008, he was attacked by inmate Hill. Hill was permitted
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access to plaintiff by defendant McDaniels for the purpose of attacking plaintiff.
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2. Defendant Bouwman knew the attack would take place but did nothing to stop
it.
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3. As a result of the attack, plaintiff lost a tooth and bled from his mouth.
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Plaintiff requested medical care from defendant Moreno but Moreno ignored his request.
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On January 26, 2011, plaintiff was informed of the requirements for opposing an
motion to dismiss for failure to exhaust administrative remedies.
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While defendants concede plaintiff exhausted administrative remedies against
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defendant McDaniels, defendants assert plaintiff never submitted an inmate grievance regarding
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the actions of Bouwman or Moreno.
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Plaintiff attaches to his complaint a grievance in which plaintiff complains about
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the actions of defendant McDaniels. However, no mention is made in the grievance of
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defendants Bouwman or Moreno or the actions plaintiff alleges they took on June 10, 2008.
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Plaintiff does not allege in the grievance that he was denied medical care on June 10, 2008 or that
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some correctional officer other than McDaniels was aware inmate Hill meant harm to plaintiff,
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yet allowed Hill access to plaintiff anyway. Plaintiff does not allege he submitted a separate
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grievance regarding the events of June 10, 2008 other than the one attached to his complaint and
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does not explain why he did not grieve the facts comprising his claims against Bouwman and
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Moreno.
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In light of the foregoing, the court finds that plaintiff did not exhaust
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administrative remedies with respect to his claims against defendant Bouwman or Moreno.
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Therefore, the court will recommend that plaintiff’s claims against them be dismissed.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1. Defendants’ March 31, 2011 motion to dismiss be granted; and
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2. Defendants Bouwman and Moreno be dismissed.
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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: October 3, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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