Wilson v. Price et al

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/8/17 RECOMMENDING that defendant's motion to dismiss (ECF No. 19 ) be denied without prejudice. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD WILSON, 12 No. 2:15-cv-0866-KJM-EFB P Plaintiff, 13 v. 14 J. PRICE, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He alleges that defendant S. De La Cruz1 (hereafter “defendant”) violated his 19 Eighth Amendment rights by denying him a lower bunk assignment. ECF No. 1 at 7-8. 20 Defendant has filed a motion to dismiss (ECF No. 19) arguing that plaintiff failed to exhaust his 21 administrative remedies before filing this suit. Plaintiff filed a response (ECF No. 22), defendant 22 filed a reply (ECF No. 23) and, wanting to have the last word, plaintiff filed an unauthorized2 23 24 25 26 27 28 1 Plaintiff’s complaint also named three other officials, but each was dismissed on screening. ECF No. 11. 2 Neither the Federal Rules of Civil Procedure nor this district’s Local Rules entitle a party to a surreply as a matter of right. Instead, the Local Rules provide for a motion, a response in opposition to the motion, and a reply. See E.D. Cal. R. 230(b)-(d). The court may, in its discretion, allow a surreply “where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. England, 2005 U.S. Dist. LEXIS 29357, 2005 WL 3031136, at *1 (E.D. Cal. Nov. 8, 2005). Defendant raised a new 1 1 surreply (ECF No. 24). After review of the relevant pleadings, the court recommends that 2 defendant’s motion to dismiss be denied. 3 I. 4 Background Plaintiff arrived at Deuel Vocation Institution (hereafter “DVI”) on September 30, 2014. 5 ECF No. 1 at 6. He was transported to the housing unit where defendant informed him of his cell 6 assignment. Id. at 7. After realizing his assignment would require him to occupy an upper bunk, 7 he informed defendant that he suffered from a back injury which required assignment to a lower 8 bunk. Id. at 7-8. Plaintiff alleges that defendant declined to address the issue directly and told 9 him to work out bunk assignments with his new cellmate. Id. at 8. Plaintiff claims that he 10 attempted to do so, but quickly learned that his cellmate also had medical reasons requiring 11 assignment to a lower bunk. Id. Plaintiff resigned himself to the upper bunk and, the next 12 morning, sustained an injury when he slipped and fell while attempting to climb down. Id. 13 Plaintiff now alleges that defendant violated his rights by failing to accommodate his need for a 14 lower bunk. Id. at 10. 15 Plaintiff submitted a prison grievance appeal regarding the allegations relevant to this suit. 16 ECF No. 1, Ex. B at 5. That appeal was denied at the first level of review. Id. Plaintiff pursued 17 his appeal to the second level of prison review and received a rejection on January 6, 2015. Id. at 18 3. The appeals coordinator noted that the appeal was rejected pursuant to California Code of 19 Regulations, Title 15, Section 3084.6(b)(13).3 Id. Specifically, the appeal was determined to be 20 incomplete because plaintiff failed to complete section D of the 602 appeal form prior to 21 completing 602-A. Id. Plaintiff ultimately filed a corrected appeal response to this rejection, but 22 ///// 23 ///// 24 25 26 27 28 argument in his reply, namely that plaintiff failed to administratively challenge the cancellation of his appeal (ECF No. 23 at 3), and the court will therefore exercise its discretion to consider the surreply. 3 This provision provides that an appeal may be rejected if “[t]he appeal is incomplete; for example, the inmate or parolee has not provided a signature and/or date on the appeal forms in the designated signature/date blocks provided.” Cal. Code Regs. tit. 15, § 3084.6(b)(13). 2 1 prison officials did not receive it within the thirty day time limit allowed for resubmission. Id. at 2 2. Prison officials therefore cancelled the appeal pursuant to Title 15, section 3084.6(c)(4).4 Id. 3 II. Legal Standards 4 A. 5 A complaint may be dismissed under that rule for “failure to state a claim upon which 6 relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to 7 state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its 8 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility 9 when the plaintiff pleads factual content that allows the court to draw the reasonable inference Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) 10 that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 11 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability 12 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 13 Iqbal, 556 U.S. at 678. 14 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 15 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 16 subject to judicial notice, and construes all well-pleaded material factual allegations in the light 17 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 18 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 19 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 20 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d 21 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the 22 claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). 23 Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. 24 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the Court need not accept as 25 true unreasonable inferences or conclusory legal allegations cast in the form of factual 26 27 28 4 This provision provides that an appeal may be cancelled if “[t]ime limits for submitting the appeal are exceeded even though the inmate or parolee had the opportunity to submit within the prescribed time constraints.” Cal. Code Regs. tit. 15, § 3084.6(c)(4). 3 1 allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining 2 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). 3 B. 4 The Prison Litigation Reform Act of 1995 (hereafter “PLRA”) states that “[n]o action Dismissal for Failure to Exhaust Administrative Remedies 5 shall be brought with respect to prison conditions under section 1983 . . . or any other Federal 6 law, by a prisoner confined in any jail, prison, or other correctional facility until such 7 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA 8 applies to all suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), but a prisoner is 9 only required to exhaust those remedies which are “available.” See Booth v. Churner, 532 U.S. 10 731, 736 (2001). “To be available, a remedy must be available as a practical matter; it must be 11 capable of use; at hand.” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (citing Brown v. 12 Valoff, 422 F.3d 926, 937 (9th Cir. 2005)) (internal quotations omitted). If “a failure to exhaust is 13 clear on the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Id. 14 at 1166. 15 As with other Rule 12(b) motions, consideration of a motion to dismiss for failure to 16 exhaust should be confined to the face of the complaint. Thus, dismissal for failure to exhaust 17 should generally be brought and determined by way of a motion for summary judgment under 18 Rule 56 of the Federal Rules of Civil Procedure unless it is clear from the complaint itself that the 19 claim is unexhausted. Albino, 747 F.3d. at 1168. Under this rubric, a Rule 12 motion tests the 20 sufficiency of facts alleged in the complaint, whereas a Rule 56 motion tests whether the evidence 21 is sufficient to establish genuine dispute over a given material fact. But here, defendant has 22 raised by way of a Rule 12 motion an affirmative defense claiming that plaintiff has failed to 23 exhaust available administrative remedies. Because this is an affirmative defense, it is the 24 defendant that bears the burden of pleading and proving that administrative remedies were 25 available and that the plaintiff did not exhaust those remedies. Id. at 1172. Yet, as discussed 26 below, neither the text of the complaint, nor its attachments, nor other documents incorporated by 27 the complaint demonstrates either element to establish this affirmative defense. 28 ///// 4 1 III. 2 Analysis Defendant argues that it is apparent from the face of the complaint that plaintiff did not 3 exhaust his administrative remedies before filing this suit. Notably, the exhibits attached to 4 plaintiff’s complaint indicate that his appeal was rejected at the second level for failure to 5 properly complete the appeal form and ultimately cancelled when prison officials did not receive 6 the corrected form within the thirty day deadline. ECF No. 1-2 at 2-3. By way of his opposition 7 plaintiff now claims that the actions of prison officials prevented him from meeting that deadline, 8 thereby rendering administrative remedies unavailable. ECF No. 22 at 5-12. Specifically, he 9 alleges that, after receiving the second level rejection dated January 6, 2015, he submitted his 10 corrected appeal to prison officials at Calipatria State Prison on January 22, 2015 – well within 11 the thirty day deadline. Id. at 9. He has attached an envelope to his opposition which purports to 12 show that his corrected appeal was mailed to DVI officials on January 25, 2015. Id. at 16. 13 Plaintiff claims, however, that DVI officials returned the corrected appeal to him unopened “for 14 no reason” and he was forced to resubmit it, presumably explaining the delay. Id. at 10. 15 Defendant addresses this contention in his reply and raises two countervailing arguments: (1) the 16 envelope submitted in support of plaintiff’s opposition lacks foundation to support the contention 17 that it contained the corrected appeal and (2) plaintiff failed to challenge the cancellation of his 18 appeal by way of a new administrative grievance, as the cancellation notice suggested he could 19 do. ECF No. 23 at 2-3. 20 The court is precluded from considering the envelope because it is outside the pleadings. 21 See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (“In ruling on a 12(b)(6) motion, a 22 court may generally consider only allegations contained in the pleadings, exhibits attached to the 23 complaint, and matters properly subject to judicial notice.”). Irrespective of the envelope, 24 however, plaintiff alleges that he attempted to comply with the relevant administrative deadlines, 25 but was thwarted by prison officials when they returned his unopened grievance “for no reason.” 26 ECF No. 22 at 9-10. Defendant correctly points out that plaintiff did not actually include this 27 explanation for his failure to exhaust in his complaint (ECF No. 23 at 3), but prisoner complaints 28 ///// 5 1 are not required to plead exhaustion. Jones, 549 U.S. at 216. Thus, it is not clear from the face of 2 the complaint that this claim is unexhausted and dismissal on this basis is unwarranted. 3 Defendant’s second argument – that plaintiff should have administratively appealed his 4 cancellation – is also unavailing. To be sure, the notice of cancellation provided, in relevant part: 5 Pursuant to CCR 3084.6(e), once an appeal has been cancelled, that appeal may not be resubmitted. However, a separate appeal can be filed on the cancellation decision. The original appeal may only be resubmitted if the appeal on the cancellation is granted. 6 7 8 ECF No. 1, Ex. 2 at 2 (emphasis added). And other courts in this circuit have emphasized that an 9 inmate is required to avail himself of this opportunity in order to fully exhaust. See Wilson v. 10 Zubiate, No. 14-cv-01032-VC, 2016 U.S. Dist. LEXIS 78951 at * 3 (N.D. Cal. June 8, 2016) 11 (“Under the applicable regulations, this was not the end of the line — instead, [plaintiff] had the 12 opportunity to (and was required to) appeal the cancellation. See 15 CCR §§ 3084.6(e), 13 3084.7(c), 3084.1(b).”); see also McCowan v. Hedricks, No. C 13-3554 RS (PR), 2016 U.S. Dist. 14 LEXIS 78795 at *6 (N.D. Cal. June 16, 2016) (“Although a cancelled appeal may not be 15 submitted for further review, the inmate may separately appeal the cancellation. 15 CCR § 16 3084.6(e). A cancelled appeal does not exhaust administrative remedies. Id. § 3084.1(b).”). The 17 record before the court, however, is silent as to whether plaintiff availed himself of this option. 18 Crucially, the complaint contains no affirmative evidence of plaintiff’s failure to pursue this 19 remedy. Rather, defendant’s reply suggests that the court should interpret plaintiff’s silence on 20 this matter as tacit admission of that failure. ECF No. 23 at 3. Acceptance of this argument 21 would reverse the structure of burdens laid out in Jones and run contrary to its edict that failure to 22 exhaust under the PLRA is “an affirmative defense which the defendant must plead and prove.” 23 Jones, 549 U.S. at 216. 24 In light of the foregoing, the court concludes that this is not one of those rare cases in 25 which failure to exhaust is apparent from the face of the complaint. As the Ninth Circuit noted in 26 Albino, defendants will generally be required to “produce evidence proving failure to exhaust in 27 order to carry their burden” and, as such, a motion for summary judgment under Rule 56 is more 28 ///// 6 1 likely to be the appropriate vehicle for demonstrating an inmate’s failure to exhaust. 747 F.3d at 2 1166. 3 IV. 4 5 Conclusion Accordingly, IT IS HEREBY RECOMMENDED that defendant’s motion to dismiss (ECF No. 19) be DENIED without prejudice. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 11 within the specified time may waive the right to appeal the District Court’s order. Turner v. 12 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 Dated: February 8, 2017. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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