Brown v. Felker et al

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 1/09/13 recommending that defendants motion to dismiss pursuant to unenumerated rule 12(b) 21 be granted and this action be dismissed without prejudice MOTION to DISMISS 21 referred to Judge Kimberly J. Mueller. 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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SACRAMENTO DIVISION

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BRIAN BROWN
Plaintiff,

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vs.

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No. CIV S-11-1935 KJM DAD P

TOM FELKER, et al.
Defendant.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed a civil

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rights action seeking relief under 42 U.S.C. § 1983. On April 11, 2012, plaintiff filed his

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amended complaint. (Doc. No. 14.) On April 25, 2012 the court screened the amended

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complaint, found that it stated a cognizable Eighth Amendment claim for failure to protect and

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authorized service solely upon defendant Ingwerson. (Doc. No. 15.)1 This matter is now before

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the court on defendant Ingwerson’s motion to dismiss due to plaintiff’s failure to exhaust his

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The court found that the amended complaint failed to state a cognizable claim against
named defendants Dangler, Jackson and Felker and service was not authorized with respect to
those individuals. (Doc. No. 15 at 2-3.)
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administrative remedies prior to filing suit. Plaintiff has filed an opposition to the motion and

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defendant has filed a reply.

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BACKGROUND

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In his amended complaint plaintiff alleges as follows. On July 28, 2007, he was

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told to report to defendant Ingwerson2 in front of the prison program office. (Am. Compl. at 3.)

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There, defendant Ingwerson informed plaintiff that his assistance was needed to help with

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consolidating prisoner bed moves. Defendant Ingwerson ordered plaintiff to stay on the yard

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while Ingwerson went into the program office. Plaintiff informed defendant Ingwerson that it

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was not his assigned yard time, but remained on the yard. As defendant Ingwerson was walking

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into the program office he stopped and asked plaintiff if he was aware that a disturbance may

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arise, to which plaintiff answered that he was not. (Id.) Minutes later a group of Hispanic

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inmates attacked plaintiff and several other African American inmates. (Id. at 4.) Plaintiff

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received two stab wounds to the chest during this attack. Plaintiff claims that defendant

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Ingwerson was deliberately indifferent to his safety in violation of plaintiff’s Eighth Amendment

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rights and failed to protect him by standing aside as the attack on plaintiff took place. (Id.)

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DEFENDANT’S MOTION
I. Defendant Sergeant Ingwerson’s Motion

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Counsel on behalf of defendant Ingwerson has moved to dismiss this action

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arguing that plaintiff failed to exhaust his administrative remedies prior to bringing suit as

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required. Specifically, defense counsel contends that plaintiff did not exhaust his administrative

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remedies because he failed to obtain a decision at the third-level of administrative review on the

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claim he asserts in this civil action. Defense counsel argues that the Office of Appeals, which

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At all relevant times defendant Ingwerson was employed by the California Department
of Corrections and Rehabilitation (CDCR), working as a correctional Sergeant at High Desert
State Prison in Susanville, CA.
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receives and maintains inmate appeals at the third level of review, has not accepted and denied a

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grievance from plaintiff regarding this claim. (Def.’s Mot. to Dismiss at 2-3; Doc. No. 21.)

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II. Plaintiff’s Opposition

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In opposition to the pending motion to dismiss plaintiff implicitly concedes that

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he did not pursue an inmate appeal with respect to the incident in question through the third level

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of administrative review prior to filing suit. Rather, plaintiff essentially argues that the appeals

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coordinator improperly screened out his inmate appeals, thereby blocking him from pursuing his

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administrative remedies. Plaintiff contends that in responding to his inmate appeals the appeals

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coordinator did not provide sufficiently detailed instructions as to how plaintiff should correct

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any deficiency in the appeal forms. Plaintiff also suggests that prison officials’ refusal to respond

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to a citizen’s complaint filed by his mother prevented him from exhausting administrative

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remedies. (Pl.’s Opp’n to Def.’s Mot. to Dismiss at 2-6 ; Doc. No. 25.)

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III. Defendant’s Reply

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Defense counsel asserts that the appeals coordinator properly screened out and

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rejected plaintiff’s inmate appeals because they were not timely filed and that plaintiff has failed

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to show that he did not have the opportunity to file an inmate appeal within the prescribed time.

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Defense counsel also argues that plaintiff has failed to provide any evidence that the appeals

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coordinator screened out his inmate appeal for any improper reason. Finally, defense counsel

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points out that any reliance by plaintiff on regulations currently governing the inmate appeals

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process is misplaced because those procedures did not apply in 2007, the year the incident and

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the inmate appeal submissions in question took place. (Def.’s Reply to Opp’n to Mot. to Dismiss

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at 2-6; Doc. No. 26.)

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ANALYSIS
I. Legal Standards Applicable to a Motion to Dismiss Pursuant to Non-Enumerated Rule 12(b)

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By the Prison Litigation Reform Act of 1995 (“PLRA”), Congress amended 42

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U.S.C. § 1997e to provide that “[n]o action shall be brought with respect to prison conditions
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under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,

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prison, or other correctional facility until such administrative remedies as are available are

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exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement “applies to all inmate suits about

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prison life, whether they involve general circumstances or particular episodes, and whether they

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allege excessive 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

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administrative procedures is mandated regardless of the relief offered through such procedures.

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

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reading futility or other exceptions into the statutory exhaustion requirement. Id. at 741 n.6.

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

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exhaustion requirement by filing an untimely or otherwise procedurally defective administrative

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grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). The Supreme Court has also

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held that “to properly exhaust administrative remedies prisoners ‘must complete the

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administrative review process in accordance with the applicable procedural rules,’ [] - rules that

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are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549

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U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88). See also Marella v. Terhune, 568

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F.3d 1024, 1027 (9th Cir. 2009) (“The California prison system’s requirements ‘define the

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boundaries of proper exhaustion.’”) (quoting Jones, 549 U.S. at 218).

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A California prisoner is required to submit an inmate appeal at the appropriate

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level and proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d

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1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). In 2007, when

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the events in question occurred, California’s Department of Corrections provided a four-step

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grievance process for prisoners who sought review of an administrative decision or perceived

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mistreatment. See Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 2009). That process

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provided that within fifteen working days of “the event or decision being appealed,” the inmate

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must ordinarily have filed an “informal” appeal, through which “the appellant and staff involved
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in the action or decision attempt to resolve the grievance informally.” Cal. Code Regs., tit. 15, §§

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3084.5(a), 3084.6(c) (2007). The informal level response must have been completed within ten

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working days. Id. § 3084.6(b)(1). However, this informal level of review was waived for appeals

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of alleged misconduct by a departmental peace officer. Id. §§ 3084.5(a)(3)(G), 3084.1(e). If the

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inmate was required to file an informal appeal and was not satisfied with the resolution of his

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grievance, he then had fifteen working days to proceed to the first formal level of review,

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normally conducted by an appeals coordinator. Id. §§ 3084.5(b), 3084.6(c). Following the first

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formal level of review were the second level of review, providing review by the institution’s head,

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and the third level of review in which review was conducted by a designee of the Director of the

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Department of Corrections. The result at the third level of review constituted the decision of the

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Secretary of the California Department of Corrections and Rehabilitation and exhausts a

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prisoner’s administrative remedies. See id. § 3084.7(d)(3).3
The PLRA exhaustion requirement is not jurisdictional but rather creates an

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affirmative 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. The defendant’s burden of establishing an inmate’s failure to exhaust

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administrative remedies, however, has been characterized by the Ninth Circuit as “very low.”

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Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012). The defendant need only show the

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existence of a grievance procedure the plaintiff did not use. Id. (citing Hilao v. Estate of Marcos,

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103 F.3d 767, 778 n.5 (9th Cir. 1996) and Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir.

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2005)).

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Under the California regulations applicable here an inmate appeal could be rejected if
the “[t]ime limits for submitting the appeal are exceeded and the appellant had the opportunity to
file within the prescribed time constraints.” Cal. Code Regs., tit. 15, § 3084.3(c)(6) (2007). An
inmate appeal could also be rejected if it duplicates the appellant’s previous appeal, concerned an
anticipated action or decision, or was incomplete or necessary supporting documents were not
attached thereto. Id. §§ 3084.3(c)(2), (3), (5).
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In order to be excused from exhausting administrative remedies as required, a

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plaintiff must establish that the existing administrative remedies were effectively unavailable to

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him. Albino, 697 F.3d at 1031. In this regard, the Ninth Circuit has held that inmates may be

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excused from complying with the PLRA’s exhaustion requirement where improper screening of

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inmates’ grievances renders administrative remedies effectively unavailable, causing a failure to

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exhaust. Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such a case, “the inmate cannot

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pursue the necessary sequence of appeals, and administrative remedies are therefore plainly

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unavailable.” Id. See also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (holding that

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inmate’s failure to exhaust his administrative remedies was excused because he took reasonable

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steps to present his claim to prison officials and was precluded from exhausting his administrative

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remedies, not through his own fault but due to the prison warden’s mistake in referring him to an

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inapplicable Program Statement).
If the district court concludes that the prisoner has not exhausted administrative

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remedies with respect to a claim presented in a civil action and is not excused from doing so, “the

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proper remedy is dismissal of the claim without prejudice.” Wyatt, 315 F.3d at 1120. See also

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Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). On the other hand, “if a complaint contains

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both good and bad claims, the court proceeds with the good and leaves the bad.” Jones, 549 U.S.

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at 221.

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II. Discussion
In moving to dismiss, counsel for defendant Ingwerson argues that plaintiff failed

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to exhaust his administrative remedies because he did not properly file his inmate appeal with

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respect to the incident in question. In his first inmate appeal submitted on September 23, 2007,

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plaintiff alleged staff misconduct during the July 28, 2007 incident in the prison yard. (Pl.’s

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Opp’n, Ex. 1 at 1-2.)4 However, under the applicable regulations plaintiff had only fifteen

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working days, until August 17, 2007, to file his initial grievance with respect to the July 28, 2007

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incident. See Cal. Code Regs., tit. 15, §§ 3084.5(a)(3)(G), 3084.6(c) (2007). Defendant has

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established that plaintiff’s first inmate appeal was rejected as untimely and was never submitted to

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the highest level of review as required. (Def.’s Mot. to Dismiss at 2-3.) Because defendant

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Ingwerson has carried his burden of raising and proving the absence of exhaustion, plaintiff must

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establish that the existing administrative remedies were effectively unavailable to him. Albino,

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697 F.3d at 1031.
The time limit for submitting an inmate appeal provided under the governing

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California regulations may be exceeded if there was no opportunity for the appellant to file the

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appeal within the time constraints provided. Cal. Code Regs., tit. 15, §§ 3084.6(c) and

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3084.3(c)(6). Here, plaintiff has not done so.5 Indeed, plaintiff does not even argue that he lacked

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the opportunity to file a timely inmate appeal. Rather, he contends only that the improper

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screening out of his grievances excuse his failure to properly exhaust. In this regard, plaintiff

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contends that the appeals coordinator blocked his attempts to exhaust his administrative remedies

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and failed to provide him with proper instructions on the screening forms.
It is correct that in 2007 the governing regulations provided that upon screening or

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rejecting an inmate appeal, the appeals coordinator was to explain in writing why the appeal was

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being rejected. Cal. Code Regs., tit. 15, § 3084.3(d) (2007). An inmate appeal could properly be

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rejected if, among other reasons, it was untimely, duplicated a previous appeal, concerned an

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Plaintiff’s initial inmate appeal was accompanied by a Rights and Responsibility
Statement as required by § 3084.1(e) of the applicable regulations and because it alleged staff
misconduct, the informal appeal level was waived.
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Plaintiff’s first level inmate appeal stated that he was escorted back to his cell “hours”
after the incident in question occurred and that he was treated for his wounds, suggesting that the
nature of his injuries, while serious, did not act to prevent him from filing his inmate appeal in a
timely fashion. (Pl.’s Opp’n, Ex. 1 at 4.) Plaintiff has submitted no evidence or argument to the
contrary.
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anticipated action or decision, or was incomplete or necessary supporting documents were not

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attached. Id. §§ 3084.3(c)(1)-(8).

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As noted above, plaintiff filed his first level inmate appeal on September 23, 2007.

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(Pl.’s Opp’n, Ex. 1 at 2-4.) The appeals coordinator screened that appeal three days later on

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September 26, 2007, well within the minimal time period of ten working days provided for the

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review of such an appeal. (Id.); Cal. Code Regs., tit. 15, § 3084.6(b) (2007). The appeals

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coordinator rejected that inmate appeal because it was filed beyond the fifteen working day time

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limit, concerned an anticipated action or decision in pending prison disciplinary proceedings6, and

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the appeal did not include the necessary documentation. (Pl.’s Opp’n, Ex. 3 at 1.)
Plaintiff filed a second inmate grievance on September 30, 2007. (Pl.’s Opp’n, Ex.

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1 at 5.) The appeals coordinator screened out this grievance on October 2, 2007, again well

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within the time period provided for review. (Id.); Cal. Code Regs., tit. 15, § 3084.6(b) (2007). In

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his second grievance plaintiff did not address the disciplinary action pending against him but

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rather merely stated that he wanted his first inmate appeal processed as a staff complaint. (Pl.’s

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Opp’n, Ex. 1 at 5.) This second grievance was screened out once because plaintiff’s prison

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disciplinary hearing was still pending and due to his failure to attach required documentation and

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a second time because the grievance was duplicative of plaintiff’s first inmate appeal which had

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already been rejected as untimely. (Pl.’s Opp’n, Ex. 3 at 2,3.)
Upon this review of the screening forms issued in response to plaintiff’s inmate

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grievances, the court concludes that the appeals coordinator explained why those inmate appeals

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were deemed unacceptable and rejected in a manner which complied with the governing

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California regulations. Thus, this court cannot say that either of plaintiff’s inmate appeals were

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The first level inmate appeal was properly screened out as untimely pursuant to the
governing regulations. Nonetheless, the appeals coordinator was seemingly concerned that there
was a disciplinary hearing pending regarding the July 28, 2007 incident. The appeals coordinator
also noted that plaintiff’s appeal was not being accepted as a staff complaint. (Pl.’s Opp’n, Ex. 3
at 1.)
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improperly screened in a manner that rendered administrative remedies effectively unavailable to

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him. Plaintiff’s initial grievance regarding the incident in question was submitted almost a full

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month after the time for doing so under the governing regulations had expired. See Woodford,

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548 U.S. at 83-84 (A prisoner does not satisfy the PLRA exhaustion requirement “by filing an

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untimely or otherwise procedurally defective administrative grievance or appeal”); see also Griffin

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v. CDCR, No. CV 11-3458 DOC (JCG), 2012 WL 3689669, at *2 (C.D. Cal. July 26, 2012) (“At

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the time of the alleged assault, California inmates were required to submit inmate appeals within

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fifteen working days of the event or decision being appealed. . . . As such, Plaintiff’s severely

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untimely appeal did not satisfy his obligation to properly exhaust his claim.”); Porter v. Howard,

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No. 10cv1817 JLS (PCL), 2012 WL 2837278, at *8 (S.D. Cal. Feb 27, 2012) (recommending

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dismissal because plaintiff’s sole inmate grievance regarding the incident in question was filed

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long after the fifteen days from the offending event provided by the regulations and his

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correspondence filed with other state and federal agencies did not satisfy that requirement); Jones

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v. Washington, No. C 09-3003 CW, 2011 WL 4434859, at *4 (N.D. Cal. Sept. 23, 2011) (Where

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plaintiff’s inmate appeal did not reach the appeals coordinator within the fifteen day period and

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plaintiff failed to explain why the appeal was timely, the court found that his inmate appeal was

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properly screened out, no exception to the exhaustion requirement applied and his civil action was

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dismissed).
Here, in light of plaintiff’s untimely initial grievance, nothing that the appeals

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coordinator did after rejecting the first submission as untimely is relevant to the resolution of the

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pending motion.
Finally, plaintiff argues that the prison officials’ failure to respond to a citizen’s

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complaint filed by his mother somehow prevented him from exhausting administrative remedies.

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(Pl.’s Opp’n at 5-6.) However, it is inmates, not their families, who have the right to file inmate

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appeals. Cal. Code Regs., tit. 15, § 3084(a) (2007).7

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CONCLUSION

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For the reasons set forth above, the court finds that defendant has met his burden of

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demonstrating that plaintiff failed to exhaust his administrative remedies prior to filing suit as

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required by 42 U.S.C. § 1997e(a). Plaintiff has failed to respond by showing that he exhausted all

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of the administrative remedies that were in fact made available to him. Therefore, IT IS HEREBY

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RECOMMENDED that defendant’s motion to dismiss pursuant to unenumerated Rule 12(b)

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(Doc. No. 21) be GRANTED and that this action be dismissed without prejudice.

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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 seven days after service of the objections. The parties are advised

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

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

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DATED: January 9, 2013.

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DAD: 13
brow1935.MotDissF&R

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In any event, the court notes that the citizen’s complaint regarding the July 28, 2007
incident filed by plaintiff’s mother was not submitted until December 3, 2007. (See Pl.’s Opp’n,
Ex. 3.)
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