Fuentes v. Young et al

Filing 35

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 05/13/13 ORDERING the clerk of the court randomly assign a District Judge to this action. U.S. District Judge Troy L. Nunely randomly assigned to this action. Also, RECOMMENDING that defendants' motion to dismiss 30 be granted; and this case be dismissed without prejudice. MOTION to DISMISS 30 referred to Judge Troy L. Nunley. Objections due within 14 days. (cc: AC) (Plummer, M) Modified on 5/14/2013 (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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FLOYD FUENTES,

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Plaintiff,

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vs.

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No. 2:12-cv-00573 JFM (PC)

T. YOUNG, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
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I. Introduction

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Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis,

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with an action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff’s first

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amended complaint against defendants T. Young and T. Bartos. ECF 7. In his first amended

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complaint, plaintiff alleges that defendants assaulted him on February 18, 2010. Id. As a result,

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plaintiff contends that defendants violated his Eighth Amendment right to be free from cruel and

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unusual punishment. Id. Pending before the court is defendants’ motion to dismiss these claims

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based on a failure to first exhaust administrative remedies. ECF 30. After careful review of the

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record, the undersigned concludes that defendants’ motion to dismiss should be granted.

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II. Plaintiff’s First Amended Complaint

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Plaintiff’s claim arises from an incident that took place on February 18, 2010,

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during which plaintiff claims he was assaulted by defendants. ECF 7 at 2. In his complaint,

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plaintiff explains that he went to a clinic to obtain prescribed medication he was allegedly

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denied. Id. Plaintiff claims that while waiting outside the clinic gate he made a comment that

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agitated defendant Young causing him to order plaintiff to face a building wall. Id. Plaintiff

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alleges that while he complied with defendant Young’s orders, defendant Young “approached

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plaintiff from behind,” grabbed the back of his head and slammed his face into the wall causing

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his nose to bleed. Id. Plaintiff asserts that defendant Young continued to assault him by

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slamming his body into the ground. Id. Plaintiff further asserts that defendant Bartos then

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arrived and “started kicking plaintiff in the [head]” and face. Id. at 3. Plaintiff claims he

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“suffered [abrasions], bruise[s], [and] bleeding to [the] right eye and [n]ose.” Id.

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III. Motion to Dismiss - Failure to Exhaust

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In their motion to dismiss, defendants contend that plaintiff failed to exhaust his

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administrative remedies, did not sufficiently place prison officials on notice of the alleged

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excessive use of force, and did not timely file his administrative appeal. ECF 30-1. Plaintiff was

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informed of the requirements for opposing a motion to dismiss for failure to exhaust

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administrative remedies on February 15, 2013. ECF 30. Plaintiff filed an opposition (ECF 31),

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and defendants filed a reply (ECF 33).

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A. Legal Standard Regarding Exhaustion

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The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e

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to provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C.

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§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

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facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

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Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S.

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516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of
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confinement, whether they involve general circumstances or particular episodes, and whether

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they allege excessive force or some other wrong. Porter, 534 U.S. at 532.

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Exhaustion of all “available” remedies is mandatory; those remedies need not

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meet federal standards, nor must they be “plain, speedy and effective.” Id. at 524; Booth v.

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Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in

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grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532

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U.S. at 741. A prisoner “seeking only money damages must complete a prison administrative

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process that could provide some sort of relief on the complaint stated, but no money.” Id. at 734.

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The fact that the administrative procedure cannot result in the particular form of relief requested

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by the prisoner does not excuse exhaustion because some sort of relief or responsive action may

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result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes

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of exhaustion requirement include allowing prison to take responsive action, filtering out

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frivolous cases, and creating administrative records). The Supreme Court has cautioned courts

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against reading futility or other exceptions into the PLRA exhaustion requirement. See Booth,

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532 U.S. at 741 n.6.

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A prisoner need not exhaust further levels of review once he has either received

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all the remedies that are “available” at an intermediate level of review, or has been reliably

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informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d

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926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief

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remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief

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remained available, whether at unexhausted levels or through awaiting the results of the relief

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already granted as a result of that process. Id., at 936-37.

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As noted above, the PLRA requires proper exhaustion of administrative remedies.

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Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). “Proper exhaustion demands compliance with an

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agency’s deadlines and other critical procedural rules because no adjudicative system can

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function effectively without imposing some orderly structure on the course of its proceedings.”
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Id. at 90-91. Thus, compliance with grievance procedures is required by the PLRA to properly

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exhaust. Id. The PLRA’s exhaustion requirement cannot be satisfied “by filing an untimely or

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otherwise procedurally defective administrative grievance or appeal.” Id. at 83-84. When the

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rules of the prison or jail do not dictate the requisite level of detail for proper review, a prisoner’s

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complaint “suffices if it alerts the prison to the nature of the wrong for which redress is sought.”

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Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). This requirement is because the primary

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purpose of a prison’s administrative review system is to “notify the prison of a problem and to

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facilitate its resolution.” Griffin, 557 F.3d at 1120.

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Non-exhaustion under § 1997e(a) is an affirmative defense which should be

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brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil

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Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court

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may look beyond the pleadings to determine whether a plaintiff exhausted his administrative

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remedies. Id. at 1119-20.

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B. California Prisons’ Grievance Procedures

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California regulations allow a prisoner to appeal any action or decision by a prison

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official that adversely affects the prisoner's welfare. Cal. Code Regs. tit. 15, § 3084.1(a). To

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exhaust a grievance, an inmate must pursue his appeal through four levels, one “informal” and

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three “formal.” Id. §§ 3084.5, 3084.1(a). An inmate must file the initial grievance within 15

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working days of the action being appealed, and he must file each administrative appeal within 15

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working days of receiving an adverse decision at a lower level. Id. § 3084.6(c).

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At the informal level, an inmate must seek to have the involved prison employee

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resolve the problem. Id. § 3084.5(a). If this request is unsuccessful, the inmate must then fill out

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a “Form 602,” the “Inmate/Parolee Appeal Form,” describing the problem and action requested.

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Id. § 3084.2(a). An “appeals coordinator” at the prison “screen[s]” each appeal before

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forwarding it on for review on the merits. Id. § 3084.3(a). The appeals coordinator may reject,

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or “screen,” an appeal for various reasons, including failure to comply with the 15-day time limit,
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incompleteness or omission of necessary supporting documents, or failure to attempt to resolve

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the grievance informally. Id. §§ 3084.3, 3084.6(c). When the appeals coordinator rejects an

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appeal, he must fill out a form that explains why the appeal is unacceptable and instructs the

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inmate on what he must do to qualify the appeal for processing. Id. § 3084.3(d). If it appears

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from the appeal form that the prisoner has difficulty describing the problem in writing, the

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appeals coordinator must arrange an interview with the prisoner to help clarify or complete the

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appeal. Id. § 3084.3(b)(3). Once the appeals coordinator allows an appeal to go forward, the

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inmate must pursue it through three levels of formal review. Id. § 3084.5.

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C. Administrative Appeals

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Plaintiff filed his first amended complaint on April 12, 2012, which the court has

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reviewed in connection with this motion.1 ECF 7. At the time the underlying claims accrued,

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plaintiff was housed at High Desert State Prison (“HDSP”). Defendants provided the declaration

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of J.D. Lozano, Chief of the Office of Appeals for the California Department of Corrections and

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Rehabilitation (“CDCR”). Chief Lozano described the grievance procedure for inmates held in

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the CDCR, and submitted a copy of plaintiff’s appeal history indicating there were “no exhausted

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Third Level appeals” filed by plaintiff. ECF 30-2 at 5. Defendants also provided the declaration

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of B. Da Veiga, Appeals Coordinator for Kern Valley State Prison (“KVSP”), who described the

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duties of an Appeals Coordinator, and provided a copy of plaintiff’s KVSP appeal history. ECF

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30-3 at 4. Finally, defendants submitted the declaration of L. Lopez, Appeals Coordinator for

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HDSP. ECF 30-4. L. Lopez described the duties of an Appeals Coordinator, and provided a

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copy of plaintiff’s HDSP appeal history which included first and second level appeals based on

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plaintiff’s allegations that nurses denied him “anti depression” and “medications” (appeal

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number HDSP-D-10-00443). ECF 30-4 at 10.

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In both his original complaint and first amended complaint plaintiff refers to three
exhibits. Two exhibits are purportedly medical records, and the third exhibit contains
declarations of inmate witnesses. ECF 7 at 3-4. However, these exhibits were not attached to
plaintiff’s complaints, nor does the court find any such exhibits in the record.
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In appeal number HDSP-D-10-00443, received March 29, 2010, plaintiff sought
an investigation into his claims. ECF 30-4 at 8. Plaintiff alleged the following:
I’m filing this 602 against yard med staff for deliberate indifference
due to mainly three nurses who between them have made it a point to
[deny] me of my anti depression & medications which help my body
flush out mind altering poisons out of my system which can be fatal.
This has been going on now for some time now. . . . [Their]
negligence to provide me of my medication caused me to lose touch
with reality which caused the 2/18/2010 problem with [defendant] c/o
Young.

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Action Requested: I would like it to be known the [incident] that took
place with which I’m being [accused] of [assault] on staff be
[acknowledged] (was not any of my fault) and in the future that they
do not play around with the [administration] of my medication for
what ever reason and this to be placed in [their] files as misconduct.

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Id. at 10 (emphasis omitted).

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The first level appeal response summarized plaintiff’s appeal as alleging “that due

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to medical staff’s failure to provide [him] with [his] medication as prescribed, [he] suffered from

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a medical condition that altered [his] state of mind causing [him] to assault [defendant] Officer

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T. Young.” ECF 30-4 at 12. The first level appeal response also noted that during the interview

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plaintiff stated, “Those nurses on “B” Yard are messing with me, and not giving me my

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medication on purpose. I need my meds, or I will go crazy, like I did the day [defendant] C/O

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Young attacked me.” Id. Plaintiff’s first level appeal was denied based on a finding that staff did

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not violate CDCR policy. Id.

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Plaintiff sought a second level review, stating he was dissatisfied with the first
level decision and explaining that
[r]egardless of [whether] or not the RN staff violated CDCR Policy,
I was still not [provided] with Lactalose and Zoloft from 1-31-10 to
2-7-10 and that lack of medication for 8 days (actually it was far
more) still led to many symptoms of Hepatic encephlopathy and my
getting charged & found guilty of assault on staff.
ECF 30-4 at 9. The second level decision summarized plaintiff’s appeal by articulating
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plaintiff’s claims set forth in his initial appeal. Id. at 16. Plaintiff’s second level appeal was also

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denied based on a finding that staff did not violate CDCR policy. Id.

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As noted above, Chief Lozano’s declaration indicates plaintiff did not file a third

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level appeal. ECF 30-2 at 5.

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D. Analysis

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In their motion to dismiss, defendants set forth three arguments in support of

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dismissing plaintiff’s claim for failure to exhaust administrative remedies: (1) plaintiff did not

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exhaust his appeal at the director’s level of review; (2) plaintiff’s first and second level appeals

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did not put defendants on sufficient notice of the allegations of assault by defendants on February

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18, 2010; and (3) plaintiff’s appeal was untimely at the first level of appeal. ECF 30-1 at 3. The

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court finds the first argument is dispositive, and therefore does not reach defendants’ remaining

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arguments regarding sufficient notice and the timeliness of plaintiff’s first level appeal.

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In his opposition plaintiff cites the Ninth Circuit case of Harvey v. Jordan, 605

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F.3d 681 (9th Cir. 2010), in support of his argument that a partially granted 602 grievance

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exhausts administrative remedies. In their reply defendants correctly argue that Harvey is

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misapplied to this case. In Harvey, the plaintiff filed a grievance alleging “that he was denied

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due process in connection with a disciplinary charge” and “[p]rison officials failed to hold a

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hearing on the charge within the time allotted by prison rules.” Harvey, 605 F.3d at 683.

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Plaintiff then “filed a grievance complaining about the delay and requesting access to [a]

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videotape” which prison officials granted. Id. “The decision was labeled a partial grant of the

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grievance because [the plaintiff] had stated that in the alternative he requested the charge be

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dismissed.” Id. Five months later, plaintiff complained that the hearing still had not taken place

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and he had not been given the opportunity to view the videotape. Id. “The prison officials

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construed that complaint as an appeal of their prior decision, and rejected it as untimely.” Id.

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The Ninth Circuit explained that “[a]n inmate has no obligation to appeal from a grant of relief,

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or a partial grant that satisfies him, in order to exhaust his administrative remedies.” Id.
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(emphasis added). The Ninth Circuit described plaintiff’s subsequent complaint as a “reminder”

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grievance that “cannot reasonably be construed as an appeal of the decision granting him a

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hearing.” Id. at 685.

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In the case at bar, plaintiff’s partially granted grievances at the first and second

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levels were merely to facilitate a review of his allegations. ECF 30-4 at 12 and 17. Ultimately,

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plaintiff’s grievances were denied at both levels with a finding that “[s]taff did not violate CDCR

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policy.” Id. This is unlike the plaintiff’s partial grant in Harvey where the plaintiff was satisfied

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because he was granted the relief he sought in the form of a hearing and access to view a

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videotape. Harvey, 605 F.3d at 683. As a result of the denial of his grievances at both levels,

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plaintiff still had an obligation to pursue a third level of appeal because he was dissatisfied with

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the outcome of the first and second levels of appeal, and did not receive all the remedies that

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were available at these intermediate levels of review. Brown, 422 F.3d at 934-35. Thus, the

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court finds that plaintiff failed to exhaust his administrative remedies in accordance with the

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PLRA. 42 U.S.C. § 1997e(a); see also Porter, 534 U.S. at 524 (exhaustion in prisoner cases

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covered by § 1997e(a) is mandatory).

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IV. Conclusion

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Accordingly IT IS HEREBY ORDERED that the Clerk of the Court randomly
assign a district judge to this action; and

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IT IS HEREBY RECOMMENDED that:

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1. Defendants’ motion to dismiss (ECF 30) be granted; and

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2. This case 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 fourteen

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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 response to the

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

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

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

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DATED: May 13, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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fuen0573.mtd

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