Lucas v. Director of the Department of Corrections

Filing 17

ORDER signed by Magistrate Judge Dale A. Drozd on 3/5/15 ORDERING that This case is dismissed without prejudice, due to plaintiff's failure to exhaust administrative remedies prior to filing suit as required. Plaintiff's requests to amen d his complaint (Docs. Nos. 6 , 7 and 8 ) are denied as having been rendered moot. Plaintiff's motion to proceed in forma pauperis (Doc. No. 15 ) is denied as moot. Plaintiff's request for injunctive relief (Doc. No. 11 ) is denied. This case be closed.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAMONT C. LUCAS,

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No. 2:14-cv-0590 DAD P

Plaintiff,
v.

ORDER

DIRECTOR OF THE DEPARTMENT OF
CORRECTIONS
Defendant.
Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983, for

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alleged violations of his civil rights. He has consented to Magistrate Judge jurisdiction pursuant

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to 28 U.S.C. § 636(c).

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Plaintiff initiated this case on March 3, 2014, by filing a pleading entitled “Request for

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Declaratory Relief.” The Declaratory Judgment Act, 28 U.S.C. § 2201 et seq, “create[s]

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additional remedies in the form of declaratory judgment relief for federal litigants, but do[es] not

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in and of [itself] confer subject matter jurisdiction on the courts.” Luttrell v. U.S., 644 F.2d 1274,

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1275 (9th Cir. 1980).

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must “inquire whether there is an actual case or controversy within its jurisdiction.” Principal

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Life Ins. Co. v. Robinson, 394 F.3d 665, 669 (9th Cir. 2005).

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Therefore a district court presented with a request for declaratory relief

The text of plaintiff‟s initial pleading in this case alleges unconstitutional conditions of
confinement at the California City Correctional Facility (CAC). Although it ostensibly seeks
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only declaratory relief and suggests more than one type of unlawful condition at CAC, the text of

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the initial pleading also adds a request for monetary damages and focuses on “only one

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constitutional violation at this time.” (See Doc. No. 1 at 3, 6.) The pleading makes it clear that

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single violation is the alleged deprivation of plaintiff‟s right to a diet that conforms to his beliefs

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as a Muslim, which, if true, would violate his right to free exercise of religion under the First

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Amendment. Allegations of that kind, and the demand for monetary compensation for them, fall

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under the Civil Rights Act, 42 U.S.C. § 1983, which allows prisoners to seek relief from state

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actors for unconstitutional conditions of confinement. See Badea v. Cox, 931 F.2d 573, 574 (9th

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Cir. 1991). Therefore the court will construe plaintiff‟s initial pleading as a complaint seeking

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relief pursuant to § 1983, over which the court has original jurisdiction. See Portugal v.

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McDonald, No. CIV S-09-1409 DAD P, 2009 WL 4713904 at *1 (E.D. Cal. Dec. 2, 2009) (“The

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court has determined that because of the nature of petitioner's claims, this action will be construed

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as a civil rights action pursuant to 42 U.S.C. § 1983, rather than a habeas action.”).

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On June 12, 2014, plaintiff filed a formally labeled “complaint” for relief under § 1983 in

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this action, alleging that numerous defendants had interfered with his ability to keep a proper

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religious diet and thus “prevented him from engaging in conduct mandated by his faith, without

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any justification reasonably related to legitimate penological interest.” (Doc. No. 5 at 10.) The

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court will construe plaintiff‟s pleading filed June 12, 2014 as his first amended (and operative)

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complaint.

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I. Screening requirement

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The court is required to screen complaints brought by prisoners who seek relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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In considering whether a complaint states a claim upon which relief can be granted, the

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court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe

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the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232,

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236 (1974). Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to state a

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claim, a pro se complaint must contain more than “naked assertions,” “labels and conclusions” or

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“a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555-57 (2007). “Threadbare recitals of the elements of a cause of action, supported

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by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. Attachments to a complaint are considered to be

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part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach

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Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).

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II. Plaintiff‟s pleading regarding exhaustion of administrative remedies

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The first amended complaint contains a section entitled “Plaintiff Exhausted

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Administrative Remedies.” (First Amended Complaint (Doc. No. 5) at 6.) Here plaintiff

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references the administrative exhaustion prerequisite to federal litigation imposed by the Prison

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Litigation Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e. That statute provides that “[n]o

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action shall be brought with respect to prison conditions under section 1983 of this title, or any

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other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

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

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exhaustion requirement “applies to all inmate suits about prison life, whether they involve general
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circumstances or particular episodes, and whether they allege excessive force or some other

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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 administrative

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procedures is mandated regardless of the relief offered through such procedures. See Booth v.

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

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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 exhaustion

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requirement by filing an untimely or otherwise procedurally defective administrative grievance or

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

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remedies prisoners „must complete the administrative review process in accordance with the

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applicable procedural rules,‟ [ ] – rules that are defined not by the PLRA, but by the prison

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grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S.

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at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison

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system‟s requirements „define the boundaries of proper exhaustion.‟”).

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

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by the department or its staff that the inmate or parolee 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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Most appeals progress through three levels of review. See id. § 3084.7. The third level of review

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constitutes the decision of the Secretary of the California Department of Corrections and

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Rehabilitation (CDCR) and exhausts a prisoner‟s administrative remedies. See id. § 3084.7(d)(3).

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

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to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.

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2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).

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“[I]nmates are not required to specially plead or demonstrate exhaustion in their

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complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). The PLRA‟s exhaustion requirement is

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not jurisdictional; it creates an affirmative defense that defendants must plead and prove. Id.

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However, “in those rare cases where a failure to exhaust is clear from the face of the complaint,”

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dismissal for failure to state a claim is appropriate, even at the screening stage. Albino, 747 F.3d
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at 1169. See also Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (stating that “[a]

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prisoner‟s concession to nonexhaustion is a valid ground for dismissal”), overruled on other

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grounds by Albino, 747 F.3d at 1166; Sorce v. Garikpaetiti, Civil No. 14-CV-0327 BEN (JMA),

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(S.D. Cal. June 2, 2014) (relying on Albino and dismissing the complaint on screening because “it

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is clear from the face of [plaintiff‟s] pleading that he has conceded that he failed to exhaust all

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available administrative remedies . . . before he commenced this action”).

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In this case, plaintiff has informed the court in his first amended complaint that he had not

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exhausted his administrative remedies before he filed this action. Plaintiff dated his initial

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complaint – the one he styled as a “Request for Declaratory Relief” – on February 16, 2014. The

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court received it for filing on March 3, 2014. His amended complaint alleges that on February 2,

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2014, plaintiff submitted an internal prison inmate appeal, Log No. CAC-O-14-00027, regarding

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his request to receive a religious diet. (Amended Complaint at 6; see also Ex. B at 23.) Plaintiff‟s

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amended complaint details the progress of that inmate appeal through each stage of CDCR‟s

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process, through its denial at the third level on April 10, 2014 – approximately five weeks after

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plaintiff initiated this action by filing his “Request for Declaratory Relief.” (Id. at 9; Ex. B at 15-

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17.)

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The fact that plaintiff waited to file a pleading formally labeled a “complaint,” as opposed

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to his request for declaratory relief, two months after his prison appeal was exhausted does not

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evade the necessity of waiting until exhaustion is complete before pursuing litigation in federal

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court. The Ninth Circuit has long stood with other federal courts in maintaining that the PLRA

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“requires exhaustion before the filing of a complaint and that a prisoner does not comply with this

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requirement by exhausting available remedies during the course of the litigation.” McKinney v.

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Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Thus an amended complaint cannot bring a

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prematurely filed action retroactively into compliance with the PLRA‟s exhaustion requirements.

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“The bottom line is that a prisoner must pursue the prison administrative process as the first and

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primary forum for redress of grievances. He may initiate litigation in federal court only after the

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administrative process ends[.]” Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006)

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(emphasis added). “[A] prisoner must exhaust his administrative remedies for the claims
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contained within his complaint before that complaint is tendered to the district court.” Rhodes v.

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Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010). See also Bowell v. California Dept. of

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Corrections, No. 2:12-cv-0397 JAM DAD (PC), 2011 WL 7288296 at *2 (E.D. Cal. Dec. 13,

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2011) (finding that the amended complaint filed post-exhaustion was of no avail because

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“plaintiff did not receive a response from prison officials at the first level of administrative review

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until . . . several weeks after he had filed this civil action. For that reason, plaintiff failed to

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exhaust his administrative remedies . . . prior to bringing this action”).
“While it is true that requiring dismissal [for failure to exhaust] may, in some

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circumstances, occasion the expenditure of additional resources on the part of the parties and the

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court . . . this concern is outweighed by the advantages of requiring exhaustion prior to the filing

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of suit.” McKinney, 311 F.3d at 1200. Based on the authorities above, plaintiff‟s attempt to

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initiate federal litigation prior to his full administrative exhaustion requires dismissal of this civil

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action without prejudice to plaintiff‟s bringing of his now exhausted claims in a new civil action.

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Id.; see also Douglas v. Warden, San Quentin State Prison, No. C 09-00950 CW (PR), 2009 WL

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1911702 at *1 (N.D. Cal. July 1, 2009) (“An action must be dismissed unless the prisoner

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exhausted his available administrative remedies before he filed suit, even if the prisoner fully

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exhausts while the suit is pending.”); Bowell, 2011 WL 7288296 at *2 (dismissing claim without

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prejudice because it was exhausted only after the plaintiff filed suit).

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III. Plaintiff‟s request for injunctive relief

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Plaintiff has also filed a request for injunctive relief, alleging that prison officials have

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interfered with or obstructed his access to the court in retaliation for his filing of administrative

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inmate appeals and this lawsuit. (See Doc. No. 11.) He seeks an undefined order instructing

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unnamed prison officials to “cease their obstructive and retaliatory practices[.]” (Id. at 4.)1

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A temporary restraining order is an extraordinary measure of relief that a federal court

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may impose without notice to the adverse party only if, in an affidavit or verified complaint, the

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movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the

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If granted, such an order would issue as either a temporary restraining order (TRO) or, more
likely, a preliminary injunction.
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movant before the adverse party can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A).

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Local Rule 231(a) states that “[e]xcept in the most extraordinary of circumstances, no temporary

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restraining order shall be granted in the absence of actual notice to affected party and/or

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counsel[.]” It is the practice of this court, in the absence of such extraordinary circumstances, to

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construe a motion for temporary restraining order as a motion for preliminary injunction. See,

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e.g., Aiello v. One West Bank, No. 2:10–cv–0227–GEB–EFB, 2010 WL 406092 (E.D. Cal. Jan.

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29, 2010).

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A preliminary injunction should not issue unless necessary to prevent threatened injury
that would impair the court‟s ability to grant effective relief in a pending action. “A preliminary

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injunction . . . is not a preliminary adjudication on the merits but rather a device for preserving the

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status quo and preventing the irreparable loss of rights before judgment.” Sierra On-Line, Inc. v.

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Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A preliminary injunction represents

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the exercise of a far reaching power not to be indulged except in a case clearly warranting it.

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Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). “The proper legal standard

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for preliminary injunctive relief requires a party to demonstrate „that he is likely to succeed on the

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merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

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balance of equities tips in his favor, and that an injunction is in the public interest.‟” Stormans,

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Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009), citing Winter v. Natural Res. Def. Council,

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Inc., 555 U.S. 7, 22 (2008) (internal quotations omitted). In cases brought by prisoners involving

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conditions of confinement, any preliminary injunction “must be narrowly drawn, extend no

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further than necessary to correct the harm the court finds requires preliminary relief, and be the

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least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).

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A plaintiff cannot, as a general matter, obtain injunctive relief against non-parties.

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“Unrelated claims against different defendants belong in different suits[.]” George v. Smith, 507

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F.3d 605, 607 (7th Cir. 2007). However, a federal court does have the power to issue orders in

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aid of its own jurisdiction, 28 U.S.C. § 1651(a), and to prevent threatened injury that would

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impair the court‟s ability to grant effective relief in a pending action. Sierra On-Line, Inc. v.

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Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 F.2d

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863 (9th Cir. 1989).
Plaintiff‟s claim that prison officials are obstructing his access to this court could, if

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proven, justify an order in furtherance of the court‟s ability to adjudicate this case.

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However, plaintiff has failed to demonstrate that any form of injunctive relief is essential to

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preserve the status quo in this action. To the contrary, the docket of this case shows that plaintiff

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has been able to file papers and requests of this court with regularity and to respond to the court‟s

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orders in a reasonably timely fashion, including by seeking and obtaining extensions of time in

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which to do so. Plaintiff has not demonstrated that in the absence of preliminary relief he is likely

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to suffer irreparable harm – either on the merits of the instant litigation or, more importantly, to

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his person. “Speculative injury does not constitute irreparable injury sufficient to warrant

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granting a preliminary injunction.” Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674

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(9th Cir. 1988), citing Goldie‟s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir.

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1984). Rather, a presently existing actual threat must be shown, although the injury need not be

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certain to occur. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130-31

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(1969); FDIC v. Garner, 125 F.3d 1272, 1279-80 (9th Cir. 1997); Caribbean Marine, 844 F.2d at

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674.
For all of the reasons set forth above, therefore, plaintiff‟s request for injunctive relief will

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be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. This case is dismissed without prejudice, due to plaintiff‟s failure to exhaust

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administrative remedies prior to filing suit as required.
2. Plaintiff‟s requests to amend his complaint (Docs. Nos. 6, 7 and 8) are denied as

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having been rendered moot.
3. Plaintiff‟s motion to proceed in forma pauperis (Doc. No. 15) is denied as moot.

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4. Plaintiff‟s request for injunctive relief (Doc. No. 11) is denied.

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5. This case be closed.

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Dated: March 5, 2015

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