Schlager v. Miranda
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/16/12 recommending that defendant's unopposed motion to dismiss 20 be granted. MOTION to DISMISS 20 referred to Judge John A. Mendez. Objections due within 14 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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ANDREW G. SCHLAGER,
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No. 2:11-CV-1591-JAM-CMK-P
Plaintiff,
vs.
FINDINGS AND RECOMMENDATIONS
R. MIRANDA,
Defendant.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
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42 U.S.C. § 1983. Pending before the court is defendant’s unopposed motion to dismiss (Doc.
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20) based on lack of exhaustion of administrative remedies.
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Prisoners seeking relief under § 1983 must exhaust all available administrative
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remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory
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regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling
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Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of
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the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies
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while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The
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Supreme Court addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and
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held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint
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because lack of exhaustion is an affirmative defense which must be pleaded and proved by the
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defendants; (2) an individual named as a defendant does not necessarily need to be named in the
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grievance process for exhaustion to be considered adequate because the applicable procedural
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rules that a prisoner must follow are defined by the particular grievance process, not by the
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PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not
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all, claims are unexhausted.
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The Supreme Court also held in Woodford v. Ngo that, in order to exhaust
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administrative remedies, the prisoner must comply with all of the prison system’s procedural
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rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus,
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exhaustion requires compliance with “deadlines and other critical procedural rules.” Id. at 90.
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Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance
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which affords prison officials a full and fair opportunity to address the prisoner’s claims. See id.
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at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the
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quantity of prisoner suits “because some prisoners are successful in the administrative process,
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and others are persuaded by the proceedings not to file an action in federal court.” Id. at 94.
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A prison inmate in California satisfies the administrative exhaustion requirement
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by following the procedures set forth in §§ 3084.1-3084.8 of Title 15 of the California Code of
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Regulations. In California, inmates “may appeal any policy, decision, action, condition, or
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omission by the department or its staff that the inmate . . . 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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These regulations require the prisoner to proceed through three levels of appeal. See Cal. Code
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Regs. tit. 15, §§ 3084.1(b), 3084.2, 3084.7. A decision at the third formal level, which is also
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referred to as the director’s level, is not appealable and concludes a prisoner’s departmental
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administrative remedy. See id. Departmental appeals coordinators may reject a prisoner’s
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administrative appeal for a number of reasons, including untimeliness, filing excessive appeals,
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use of improper language, failure to attach supporting documents, and failure to follow proper
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procedures. See Cal. Code Regs. tit. 15, §§ 3084.6(b). If an appeal is rejected, the inmate is to
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be provided clear instructions how to cure the defects therein. See Cal. Code Regs. tit. 15, §§
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3084.5(b), 3084.6(a). Group appeals are permitted on the proper form with each inmate clearly
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identified, and signed by each member of the group. See Cal. Code Regs. tit 15, § 3084.2(h).
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Currently, California regulations do not contain any provision specifying who must be named in
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the grievance.
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In certain circumstances, the regulations make it impossible for the inmate to
pursue a grievance through the entire grievance process. See Brown v. Valoff, 422 F.3d 926, 939
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n. 11 (9th Cir. 2005). Where a claim contained in an inmate’s grievance is characterized by
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prison officials as a “staff complaint” and processed through a separate confidential process,
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prison officials lose any authority to act on the subject of the grievance. See id. at 937 (citing
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Booth, 532 U.S. at 736 n. 4). Thus, the claim is exhausted when it is characterized as a “staff
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complaint.” See id. at 940. If there are separate claims in the same grievance for which further
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administrative review could provide relief, prison regulations require that the prisoner be notified
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that such claims must be appealed separately. See id. at 939. The court may presume that the
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absence of such a notice indicates that the grievance did not present any claims which could be
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appealed separate from the confidential “staff complaint” process. See id.
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In this case, defendant argues that there is “no evidence that [plaintiff] exhausted
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the administrative remedies that were available to him with regard to his . . . claims against
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defendant. . . .” The court agrees based on plaintiff’s admissions. In the complaint, plaintiff
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explicitly states that the second level appeal had been submitted on February 14, 2011, and that
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plaintiff was waiting for a response he expected to arrive by April 2011. Given that the
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complaint was filed on April 12, 2011 (signed by plaintiff on March 25, 2011), it is obvious that
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plaintiff did not exhaust all available administrative remedies prior to filing suit. While it is
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possible that the administrative exhaustion process has since been completed, post-filing
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exhaustion is insufficient as it fails to give the prison an opportunity to correct a potential
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violation before a lawsuit is filed.
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Based on the foregoing, the undersigned recommends that defendant’s unopposed
motion to dismiss (Doc. 20) be granted.
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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 14 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. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: October 16, 2012
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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