Reyes v. Smith et al

Filing 18

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 7/18/13 RECOMMENDING that 14 MOTION to DISMISS be granted, and this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, 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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DAVID REYES,

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No. 2:12-CV-0652-KJM-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATIONS

CHRISTOPHER SMITH, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the court is defendants’ unopposed motion to dismiss (Doc. 14).

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Plaintiff was informed by the court on July 19, 2012, as to what was necessary for him to oppose

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a motion to dismiss (Doc. 11). In addition, the defendants so informed plaintiff again in their

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notice of motion (Doc. 14).

However, no opposition has been received by the court.

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I.

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This action proceeds on plaintiff’s original complaint (Doc. 1) against defendants

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Smith and Heatley. Plaintiff alleges that defendants Smith and Heatley, as members of the pain

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management committee, denied him the pain medication he was prescribed by his treating

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doctor, due to cost control. The defendants allegedly discontinued all expensive pain

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medications and nonformulary medications, including the pain medications prescribed plaintiff,

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including morphine and gabapentin, which had previously been approved.

BACKGROUND

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II.

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Defendants filed the pending motion to dismiss on the basis that plaintiff failed to

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exhaust his administrative remedies. They argue that plaintiff submitted two inmate appeals, but

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neither were sufficient to exhaust his administrative remedies. The first, submitted on or about

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May 25, 2011, failed to identify the defendants or describe their involvement in the incident. The

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second, submitted on or about October 9, 2011, involved a different and separate incident, and

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was not exhausted through the third level of review until after plaintiff initiated this law suit.

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MOTION TO DISMISS

A motion to dismiss based on a prisoner’s failure to exhaust administrative
remedies is properly the subject of an unenumerated motion under Federal Rule of Civil

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Procedure 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). “In deciding a

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motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the

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pleadings and decide disputed issues of fact.” Id. at 1119-20. Where the court looks beyond the

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pleadings to a factual record in deciding the motion to dismiss, which is “a procedure closely

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analogous to summary judgment,” the court must assure that the plaintiff has fair notice of his

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opportunity to develop a record. Id. at 1120 n.14 (referencing the notice requirements outlined in

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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d

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409 (9th Cir. 1988). Defendants bear the burden of establishing that the plaintiff failed to

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exhaust administrative remedies prior to filing suit. See Wyatt, 315 F.3d at 1120. If the court

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concludes that administrative remedies have not been exhausted, the unexhausted claim should

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be dismissed without prejudice. See id. at 1120; see also Jones v. Bock, 127 S. Ct. 910 (2007).

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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.1 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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The inmate must submit their appeal on the proper form, and is required to identify the staff

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member(s) involved as well as describing their involvement in the issue. See Cal. Code Regs. tit.

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These regulations were amended on January 28, 2011. As plaintiff’s inmate
appeal was submitted after that date, the updated regulations are cited herein.
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15, § 3084.2(a). These regulations require the prisoner to proceed through three levels of appeal.

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See Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.2, 3084.7. A decision at the third formal level,

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which is also referred to as the director’s level, is not appealable and concludes a prisoner’s

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departmental administrative remedy. See id. Departmental appeals coordinators may reject a

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prisoner’s administrative appeal for a number of reasons, including untimeliness, filing excessive

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appeals, use of improper language, failure to attach supporting documents, and failure to follow

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proper procedures. See Cal. Code Regs. tit. 15, §§ 3084.6(b). If an appeal is rejected, the inmate

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is to 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

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clearly identified, and signed by each member of the group. See Cal. Code Regs. tit 15, §

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3084.2(h).

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Here, defendants argue plaintiff failed to exhaust his administrative remedies as

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he did not identify the defendants in his inmate appeal nor did he explain their involvement in the

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medical treatment he was challenging. In order to properly exhaust the administrative remedies,

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a prisoner must comply with all of the prison system’s rules. Those rules require the prisoner to

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identify the staff member involved in the incident, and to explain that involvement. Here,

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plaintiff fails to do so. His inmate appeal addresses the termination of his prescription for

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morphine, but does not identify either of the defendants as involved in that decision. He only

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states that Dr. Hashimoto, who is not named as a defendant in this action, was responsible for the

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determination that plaintiff no longer required the medication. As such, it was insufficient to

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exhaust his administrative remedies against defendants Smith and Heatley.

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Second, defendants argue plaintiff failed to exhaust his administrative remedies

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prior to initiating this suit. Plaintiff’s second inmate appeal also addressed Dr. Hashimoto’s

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decision to stop plaintiff’s pain medication. In addition, plaintiff identified the pain management

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committee as involved in that decision. In his complaint, plaintiff states the defendants were

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members of that committee. It is questionable whether plaintiff’s second appeal would be
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sufficient to exhaust his administrative remedies, as it did not specifically identify the staff

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members but rather only identified the committee. However, the court need not address that

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issue because even if it was sufficient, plaintiff filed this lawsuit prior to completing the

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administrative process on that second appeal. The third level decision was not completed until

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May 30, 2012, but plaintiff had initiated this suit on March 14, 2012. (See Def. Mot. to Dismiss,

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Exh. D, Doc. 14). A prisoner is required to exhaust his administrative remedies prior to filing a

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lawsuit, exhausting administrative remedies after the lawsuit is filed is insufficient.

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The undersigned therefore finds plaintiff failed to properly exhaust his
administrative remedies prior to filing this lawsuit. By not so doing, he failed to follow all of the

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procedural rules and he eliminated the prison’s opportunity to fully examine the situation and

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evaluate a possible remedy for plaintiff’s situation.

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III.

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Based on the foregoing, the undersigned recommends that defendants’ unopposed

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CONCLUSION

motion to dismissed (Doc 14) be granted, and 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 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: July 18, 2013
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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