Fordley v. Lizarraga, et al.

Filing 29

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/2/2017 RECOMMENDING that 20 Motion to Dismiss be denied without prejudice. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOHN F. FORDLEY,

12

Plaintiff,

13
14

No. 2:16-cv-1387-JAM-EFB P

v.

FINDINGS AND RECOMMENDATIONS

LIZARRAGA, et al.,

15

Defendants.

16
Plaintiff is a state prisoner proceeding without counsel this civil rights action brought

17
18

under 42 U.S.C. § 1983. Defendants seek dismissal of the case because plaintiff failed to exhaust

19

his administrative remedies prior to filing. For the reasons that follow, the motion must be

20

denied.

21
22

I.

Background
Plaintiff filed this case on June 20, 2016, alleging a number of violations of his Eighth

23

Amendment rights by correctional officers. ECF No. 1. On August 2, 2016, the court screened

24

the complaint and allowed plaintiff to proceed on his claim that officers Ruggiero and Lagge had

25

subjected him to excessive force on March 9, 2016. ECF No. 11. In the section of the form

26

complaint plaintiff filled out entitled “Administrative Remedies,” plaintiff indicated that his

27

administrative appeal of the claim against defendants Lagge and Ruggiero was “pending” but that

28

his life was “in jeopardy and before they kill me I want the court to help me please.” ECF No. 1
1

1

at 8. The complaint provides no further information about plaintiff’s administrative appeal of

2

Ruggiero’s and Lagge’s alleged misconduct.

3

II.

The Motion to Dismiss

4

A. Governing Law

5

The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought

6

with respect to prison conditions [under section 1983 of this title] until such administrative

7

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Prison conditions” subject to

8

the exhaustion requirement have been defined broadly as “the effects of actions by government

9

officials on the lives of persons confined in prison . . . .” 18 U.S.C. § 3626(g)(2); Smith v.

10

Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d

11

Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the

12

claims the plaintiff has included in the complaint, but need only provide the level of detail

13

required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v.

14

Nussle, 534 U.S. 516, 524-25 (2002) (the purpose of the exhaustion requirement is to give

15

officials the “time and opportunity to address complaints internally before allowing the initiation

16

of a federal case”).

17

Prisoners who file grievances must use a form provided by the California Department of

18

Corrections and Rehabilitation (CDCR Form 602), which instructs the inmate to describe the

19

problem and outline the action requested. Title 15 of the California Code of Regulations,

20

§ 3084.2 provides further instructions, which include the direction to “list all staff member(s)

21

involved” and “describe their involvement.” Cal. Code Regs. tit. 15, § 3084.2(a)(3). If the

22

prisoner does not know the staff member’s name, first initial, title or position, he must provide

23

“any other available information that would assist the appeals coordinator in making a reasonable

24

attempt to identify the staff member(s) in question.” Id.

25

The grievance process, as defined by the regulations, has three levels of review to address

26

an inmate’s claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, § 3084.7.

27

Administrative procedures generally are exhausted once a plaintiff has received a “Director’s

28

Level Decision,” or third level review, with respect to his issues or claims. Id. § 3084.1(b).
2

1

Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731,

2

741 (2001), and “[p]roper exhaustion demands compliance with an agency’s deadlines and other

3

critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be

4

“available,” there must be the “possibility of some relief . . . .” Booth, 532 U.S. at 738. Relying

5

on Booth, the Ninth Circuit has held:

6
7
8
9
10
11
12
13
14
15
16

[A] prisoner need not press on to exhaust further levels of review once he has
received all “available” remedies at an intermediate level of review or has been
reliably informed by an administrator that no remedies are available.
Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
Failure to exhaust is “an affirmative defense the defendant must plead and prove.” Jones,
549 U.S. at 216 (2007). To bear this burden:
[A] defendant must demonstrate that pertinent relief remained available, whether
at unexhausted levels of the grievance process or through awaiting the results of
the relief already granted as a result of that process. Relevant evidence in so
demonstrating would include statutes, regulations, and other official directives
that explain the scope of the administrative review process; documentary or
testimonial evidence from prison officials who administer the review process; and
information provided to the prisoner concerning the operation of the grievance
procedure in this case . . . . With regard to the latter category of evidence,
information provided [to] the prisoner is pertinent because it informs our
determination of whether relief was, as a practical matter, “available.”

17

Brown, 422 F.3d at 936-37 (citations omitted). Once a defendant shows that the plaintiff did not

18

exhaust available administrative remedies, the burden shifts to the plaintiff “to come forward with

19

evidence showing that there is something in his particular case that made the existing and

20

generally available administrative remedies effectively unavailable to him.” Albino v. Baca, 747

21

F.3d 1162, 1172 (9th Cir. 2014) (en banc).

22

A defendant may move for dismissal under Federal Rule of Civil Procedure 12(b)(6) in

23

the rare event that the plaintiff’s failure to exhaust administrative remedies is clear on the face of

24

the complaint. Id. at 1166. “Otherwise, defendants must produce evidence proving failure to

25

exhaust” in a summary judgment motion brought under Rule 56. Id. If the court concludes that

26

plaintiff has failed to exhaust administrative remedies, the proper remedy is dismissal without

27

prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120, overruled on other grounds by Albino, 747

28

F.3d 1162.
3

1

For purposes of dismissal under Rule 12(b)(6), the court generally considers only

2

allegations contained in the pleadings, exhibits attached to the complaint, and matters properly

3

subject to judicial notice, and construes all well-pleaded material factual allegations in the light

4

most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710

5

F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

6

Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal

7

theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d

8

at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the

9

claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). In this case, the court

10

must determine whether the statements in plaintiff’s complaint concerning the exhaustion of his

11

administrative remedies establish a failure to exhaust and thus justify dismissal of the complaint

12

without prejudice.

13

B. Analysis

14

To dismiss the case as defendants request, the court must conclude that plaintiff’s

15

allegations show not only that he failed to exhaust his administrative remedies but also that those

16

remedies were in fact effectively available to him. Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th

17

Cir. 2010) (holding that a prisoner may be excused from the exhaustion requirement where the

18

conduct of prison officials rendered the administrative remedy effectively unavailable). Thus, in

19

Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225-26 (10th Cir. 2007), the Tenth Circuit noted

20

that “courts are obligated to ensure that any defects in exhaustion were not procured from the

21

action or inaction of prison officials.” Because the conduct of prison staff in processing a

22

grievance is often an issue in determining whether the administrative system was actually

23

available to the plaintiff and because such facts are not ordinarily pleaded in a complaint

24

concerning other prison conditions, it is extraordinarily rare for a court to be able to determine the

25

exhaustion question by looking only at the face of the complaint, as it must on a Rule 12(b)(6)

26

motion. Id. at 1225 (“[O]nly in rare cases will a district court be able to conclude from the face of

27

the complaint that a prisoner has not exhausted his administrative remedies and that he is without

28

a valid excuse.”).
4

1

Here, plaintiff’s complaint is silent regarding whether, due to the conduct of prison staff in

2

processing his grievance, he should be excused from the exhaustion requirement. He claims in

3

his opposition and sur-reply to the motion to dismiss that the grievance was not processed within

4

applicable time limits. To address that allegation, the court must look to evidence not contained

5

in the complaint, which it cannot do in response to this Rule 12(b)(6) motion. Accordingly, the

6

motion must be denied. Defendants are free to raise the issue in an appropriate motion pursuant

7

to Federal Rule of Civil Procedure 56, or if it turns on the resolution of genuine disputes of

8

material fact, at trial.

9
10
11

III.

Conclusion and Recommendation
For the foregoing reasons, it is hereby RECOMMENDED that defendants’ November 18,

2016 motion to dismiss (ECF No. 20) be denied without prejudice.

12

These findings and recommendations are submitted to the United States District Judge

13

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

14

after being served with these findings and recommendations, any party may file written

15

objections with the court and serve a copy on all parties. Such a document should be captioned

16

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

17

within the specified time may waive the right to appeal the District Court’s order. Turner v.

18

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

19

DATED: August 2, 2017.

20
21
22
23
24
25
26
27
28
5