Brewer v. Grossbaum et al

Filing 44

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 4/15/13 ORDERING that Defendants motion to strike (Doc. No. 38 ) is denied as unnecessary; and Plaintiffs motion for leave to file a surreply (Doc. No. 39 ) is denied as unnecessary. It is RECOMMENDED that Defendants motion to dismiss (Doc. No. 29 ) be denied; and Defendants be directed to file an answer within 30 days. Referred to Judge William B. Shubb; 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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KEVIN D. BREWER,

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Plaintiff,

No. 2:12-cv-1555 WBS DAD P

vs.
YOSSI GROSSBAUM et al.,

ORDER AND

Defendants.

FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking

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relief under 42 U.S.C. § 1983. This matter is before the court on defendants’ motion to dismiss

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this action, pursuant to unenumerated Rule 12(b) of the Federal Rules of Civil Procedure, due to

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plaintiff’s alleged failure to exhaust administrative remedies prior to filing suit as required.

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Plaintiff has filed an opposition to the motion, and defendants have filed a reply. Plaintiff has

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also filed an unauthorized response to defendants’ reply, which defendants have moved to strike.

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BACKGROUND

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Plaintiff is proceeding on his original complaint against defendants Elorza,

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Grossbaum, Peterson, and West. Therein, plaintiff alleges that defendant Chaplain Grossbaum

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denied him a kosher diet, and that defendants Peterson, Elorza, and West covered up Chaplain

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Grossbaum’s denial of a kosher diet in violation of plaintiff’s right to freely exercise his religion
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under the First Amendment and his equal protection rights under the Fourteenth Amendment.

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(Compl. at 3-4.)

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THE EXHAUSTION REQUIREMENT

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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).
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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See 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. See 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. See Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). “[T]o properly exhaust

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administrative remedies prisoners ‘must complete the administrative review process in

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accordance with the applicable procedural rules,’ [] - rules that are defined not by the PLRA, but

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by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting

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Woodford, 548 U.S. at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)

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(“The California prison system’s requirements ‘define the boundaries of proper exhaustion.’”)

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(quoting Jones, 549 U.S. at 218).

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In California, prisoners may appeal “any policy, decision, action, condition, or

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omission by the department or its staff that the inmate or parolee can demonstrate as having a

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material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, §
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3084.1(a). Most such inmate appeals progress through three levels of review. See id. § 3084.7.

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The third level of review constitutes the decision of the Secretary of the California Department of

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Corrections and Rehabilitation and exhausts a prisoner’s administrative remedies. See id. §

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3084.7(d)(3). 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).

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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. That burden, however, is “very low.” Albino v. Baca, 697 F.3d 1023,

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1031 (9th Cir. 2012). The defendants need only show the existence of an inmate grievance

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procedure that plaintiff did not use. Id. (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5

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(9th Cir. 1996) and Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005)).

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A prisoner may be excused from complying with the PLRA’s exhaustion

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requirement if he establishes that the existing administrative remedies were effectively made

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unavailable to him. Albino, 697 F.3d at 1031. For example, where prison officials improperly

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screen out inmate grievances, they render administrative remedies effectively unavailable to the

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prisoner. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such a case, “the inmate

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cannot pursue the necessary sequence of appeals . . . .” Id. See also Nunez v. Duncan, 591 F.3d

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1217, 1226 (9th Cir. 2010) (excusing an inmate’s failure to exhaust because he was precluded

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from exhausting administrative remedies by a warden’s mistaken instruction to him that a

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particular unavailable document was needed for him to pursue his inmate appeal).

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If the district court concludes that the prisoner has not exhausted administrative

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remedies and is not excused from doing so, “the proper remedy is dismissal of the claim without

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prejudice.” Wyatt, 315 F.3d at 1120. See also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir.
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2005). On the other hand, “if a complaint contains both good and bad claims, the court proceeds

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with the good and leaves the bad.” Jones, 549 U.S. at 221.

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DISCUSSION

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According to defendants, plaintiff submitted two inmate appeals between the time

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defendant Grossbaum allegedly denied him a kosher diet in 2011 and the time plaintiff filed this

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civil action on March 16, 2012. On September 22, 2011, the appeals office received plaintiff’s

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first inmate appeal and rejected it because plaintiff had neither signed nor dated the appeal. The

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office informed plaintiff that he had thirty days to make the necessary corrections and re-submit

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it but, according to defendants, plaintiff failed to pursue that inmate appeal any further. On

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November 23, 2011, the appeals office received plaintiff’s second inmate appeal. The appeals

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office also rejected that appeal on the grounds that plaintiff did not submit it on the proper form.

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The appeals office informed plaintiff that he needed to submit his inmate appeal on the CDCR

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602 form. Plaintiff then re-submitted that inmate appeal, but the appeals office rejected it once

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again on January 26, 2012 stating “[u]pon further review of your appeal issue, a determination

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was made . . . that you did not meet the time constraints for filing your appeal issue.” (Defs.’

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Mot. to Dismiss (Doc. No. 29), Elorza Decl. & Ex. 1 (Doc. No. 29-4).)1 Finally, plaintiff re-

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submitted his inmate appeal once more, but the appeals office screened out the appeal again on

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February 8, 2012, this time because it was a repeated filing of a previously cancelled appeal.

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(Defs.’ Mot. to Dismiss 2-3, Lozano Decl., Elorza Decl. & Ex. 1.)

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If the facts were as they are represented to be by defendants in their motion to

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dismiss, it would appears that prison officials acted properly in screening out plaintiff’s inmate

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appeals because he failed to comply with the rules governing the appeals process. See

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Woodford, 548 U.S. at 83-84 (a prisoner does not satisfy the PLRA exhaustion requirement “by

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filing an untimely or otherwise procedurally defective administrative grievance or appeal”).

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In this regard, defendant Grossbaum had allegedly denied plaintiff a kosher diet on
August 31, 2011. Plaintiff had not submitted his inmate appeal until December 13, 2011.
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Specifically, prison officials may screen out appeals if they lack a signature and date, are

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submitted on improper forms, or are submitted in an untimely or duplicative fashion. See Cal.

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Code Regs. tit. 15, § 3084.6(b)(13) (appeal may be rejected if the inmate has not provided a

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signature and/or date on the appeal); id. § 3084.6(b)(7) (appeal may be rejected if it is missing

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necessary documents); id. § 3084.6(b)(10) & (14) (appeal may be rejected if it is not submitted

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on departmentally-approved appeal forms); id. § 3084.6(c)(4) (appeal may be cancelled if time

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limits for submitting the appeal are exceeded); id. § 3084.6(c)(2) (appeal may be cancelled if it

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duplicates an inmate’s previous appeal upon which a decision has been rendered).

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However, the Ninth Circuit has held that a prisoner may be excused from

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complying with the exhaustion requirement when prison officials make administrative remedies

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effectively unavailable. See Albino, 697 F.3d at 1034. The exception to exhaustion requirement

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applies where there is evidence that officials engaged in misconduct, told a prisoner that there are

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no available administrative remedies, or pointed him in a direction that would cause him not to

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exhaust his administrative remedies See id. The Ninth Circuit has also cited with approval the

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Seventh Circuit’s holding that exhaustion is excused when prison officials fail to respond to a

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properly-filed grievance. See id. n.7 (noting that the court’s sister circuits also excuse exhaustion

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when prison officials make administrative remedies effectively unavailable by refusing to

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provide required grievance forms, failing to respond to properly-filed grievances, or threatening

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retaliation for filing grievances) (citing Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)).

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Here, in opposing the pending motion to dismiss, plaintiff has presented evidence

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that on October 18, 2011, he re-submitted his first appeal that the appeals office had screened out

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because it was neither signed nor dated, but prison officials never responded to that resubmitted

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inmate appeal. (Doc. No. 31, Ex. 2.) Specifically, plaintiff has submitted to the court a file-

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stamped copy of that resubmitted inmate appeal reflecting that the inmate appeals office received

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it on October 21, 2011. (Id.) Moreover, when plaintiff did not receive a response to his re-

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submitted appeal, he filed an inmate request for an interview so that he could directly inquire
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about the status of his inmate appeal. At that time prison officials informed him that the “Inmate

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Appeal Tracking System” had no record of his inmate appeal dated October 18, 2011.2 Plaintiff

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then submitted his second inmate appeal on November 23, 2011, but as discussed above, prison

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officials ultimately screened it out as being untimely and/or duplicative. Plaintiff also attempted

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to submit his inmate appeal directly to the third level of review on two separate occasions, but

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the third level of review rejected those inmate appeals for bypassing the lower levels of review.

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(Pl.’s Opp’n to Defs.’ Mot. to Dismiss at 1-3, Exs. 2-3, 12 & 14.)

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Based on the documents submitted in connection with the pending motion, the
court finds that plaintiff should be excused from complying with the PLRA exhaustion

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requirement in this case. Plaintiff properly re-submitted his first inmate appeal in accordance

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with the instructions of prison officials, but the inmate appeals office failed to respond to it. It

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appears clear that prison officials received the resubmitted inmate appeal because plaintiff has

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produced a copy of it and it is stamped by officials as having in fact been received on October 21,

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2011. After following up on his re-submitted appeal and learning that prison officials did not

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intend to respond to it because they had no record of it, plaintiff attempted to pursue his claims

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through the administrative grievance process a second time, only to be told that the appeals office

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was now screening out his inmate appeal as untimely. Nonetheless, plaintiff twice attempted to

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submit his appeal directly to the third level of appeal in a good faith effort to exhaust

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administrative remedies.

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Under these circumstances, the court finds that plaintiff took all “reasonable and

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appropriate steps” and engaged “a good faith effort” to exhaust his administrative remedies, but

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those administrative remedies were effectively made unavailable to him. See Albino, 697 F.3d at

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1035; Nunez, 591 F.3d 1224; Dole, 438 F.3d at 811 (“Because [the prisoner] properly followed

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This representation appears to be completely at odds with the copy of the re-submitted
inmate appeal in question bearing the inmate appeals office stamp reflecting its receipts on
October 21, 2011.
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procedure and prison officials were responsible for the mishandling of his grievance, it cannot be

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said that [the prisoner] failed to exhaust his remedies.”); Chatman v. Felker, No. CIV S-03-2415

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JAM EFB (TEMP) P, 2011 WL 445685 at *9 (E.D. Cal. Feb. 3, 2011) (finding prisoner’s claims

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against defendants to be exhausted after he presented evidence that he prepared a grievance and

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when he did not receive a response he attempted to pursue his claims through a number of other

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channels).

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Defendants do not explain why prison officials failed to respond to plaintiff’s re-

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submitted inmate appeal, nor have they explained why plaintiff was not granted additional time

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to submit his second inmate appeal in light of their failure to respond to his properly re-submitted

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appeal. In their reply, defendants fail to even address the evidence submitted in opposition to

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their motion by plaintiff. It is well established that defendants have the burden to raise and prove

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the affirmative defense of failure to exhaust administrative remedies. See Jones, 549 U.S. 216;

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Wyatt, 315 F.3d at 1117-19. Here, defendants have not carried their burden in that regard.

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Accordingly, defendants’ motion to dismiss should be denied.

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OTHER MATTERS

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Plaintiff has filed an unauthorized response to defendants’ reply, which

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defendants have moved to strike. Plaintiff also subsequently filed a motion for leave of the court

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to file his surreply. The court has not considered or relied upon plaintiff’s surreply in issuing

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these findings and recommendations. Accordingly, the court will deny defendants’ motion to

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strike and plaintiff’s motion for leave to file a surreply as unnecessary.

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CONCLUSION

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IT IS HEREBY ORDERED that:

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1. Defendants’ motion to strike (Doc. No. 38) is denied as unnecessary; and

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2. Plaintiff’s motion for leave to file a surreply (Doc. No. 39) is denied as

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unnecessary.

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/////
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IT IS HEREBY RECOMMENDED that:

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1. Defendants’ motion to dismiss (Doc. No. 29) be denied; and

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2. Defendants be directed to file an answer within thirty days.

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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 reply to the objections

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shall be served and filed within seven 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: April 15, 2013.

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DAD:9
brew1555.57

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