(PC) Cross v. Newsom et al
Filing
10
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/13/2020 RECOMMENDING 1 Complaint be dismissed without prejudice. Referred to Judge William B. Shubb. Objections due within 21 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
QUINTIN R. CROSS,
12
13
14
15
No. 2:19-cv-02462-WBS-CKD P
Plaintiff,
v.
FINDINGS AND RECOMMENDATIONS
GAVIN NEWSOM, et al.,
Defendants.
16
17
Plaintiff is a state prisoner proceeding pro se in this federal civil rights action filed
18
pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302
19
pursuant to 28 U.S.C. § 636(b)(1).
20
Following a review of plaintiff’s motion to proceed in forma pauperis, plaintiff was
21
advised that he failed to demonstrate his indigency in order to be permitted to proceed in forma
22
pauperis. ECF No. 5. As a result, plaintiff was denied in forma pauperis status, but was granted
23
an extension of time in order to pay the filing fees for this action. ECF No. 5 at 2.
24
In the same order, plaintiff was advised that the complaint appears subject to dismissal for
25
failing to exhaust his administrative remedies. See 42 U.S.C. § 1997e(a); see also Vaden v.
26
Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (under 42 U.S.C. § 1997e(a), a prisoner “may
27
initiate litigation in federal court only after the administrative process ends and leaves his
28
grievances unredressed.”). Despite this notice, plaintiff paid the filing fee for this action on June
1
1
16, 2020. The court now proceeds to screen plaintiff’s complaint.
2
I.
Screening Standard
3
The court is required to screen complaints brought by prisoners seeking relief against a
4
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
5
court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
6
“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
7
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
8
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
9
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
10
Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
11
indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
12
490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
13
pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
14
Cir. 1989); Franklin, 745 F.2d at 1227.
15
In order to avoid dismissal for failure to state a claim a complaint must contain more than
16
“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
17
of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
18
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
19
statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim
20
upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
21
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
22
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
23
at 678. When considering whether a complaint states a claim upon which relief can be granted,
24
the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and
25
construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416
26
U.S. 232, 236 (1974).
27
II.
Allegations in the Complaint
28
At all times relevant to the allegations in the complaint, plaintiff was an inmate at Mule
2
1
Creek State Prison. In his complaint he alleges that the water supply is contaminated with
2
industrial and human waste. ECF No. 1 at 6. In claim one, plaintiff raises an Eighth Amendment
3
challenge to these conditions of his confinement. Id. Claim two presents a Fourteenth
4
Amendment Equal Protection violation based on the same allegations. ECF No. 1 at 12. In his
5
last claim for relief, plaintiff asserts that defendants’ conduct violates the Eleventh Amendment.
6
Id. at 14. Plaintiff names fourteen individual and municipal entities as defendants in this action.
7
By way of relief, plaintiff seeks compensatory and punitive damages as well as a pardon or
8
commutation of his sentence. Id. at 17. Plaintiff also seeks injunctive relief by requiring all
9
prisons with contaminated water to be brought up to health and safety standards. Id.
10
With respect to each of his three claims for relief, plaintiff indicates that he has not
11
exhausted his administrative remedies. ECF No. 1 at 6, 12, 14. To explain why he has not
12
submitted any appeal or request for administrative relief, plaintiff refers to The Whistleblower
13
Protection Act.1 Id.
14
III.
15
“No action shall be brought with respect to prison conditions under section 1983 of this
Analysis
16
title,... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997(e)(a).
17
At the time that plaintiff filed this complaint on December 10, 2019, prisoners were permitted to
18
“appeal any policy, decision, action, condition, or omission by the [Department of Corrections
19
and Rehabilitation] or its staff that the inmate… can demonstrate as having a material adverse
20
effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a) (repealed
21
effective June 1, 2020). Administrative grievances filed by prisoners during this time period are
22
generally deemed exhausted once the third level of review has been completed by the Secretary of
23
the California Department of Corrections and Rehabilitation. See Cal. Code Regs. tit. 15, §
24
3084.7 (repealed effective June 1, 2020).
25
In Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc), the Ninth Circuit Court
26
of Appeal described when dismissal of a complaint for failure to exhaust administrative remedies
27
28
1
Plaintiff is informed that the Whistleblower Act does not relieve him of his responsibility to
exhaust his administrative remedies prior to filing suit.
3
1
is appropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a
2
claim upon which relief can be granted. Specifically, the court found that dismissal is only
3
appropriate when failure to exhaust is “clear from the face of the complaint” and that “such cases
4
will be rare because a plaintiff is not required to say anything about exhaustion in his complaint.”
5
In this instance, however, plaintiff's admission on the face of his complaint that he never pursued
6
administrative remedies requires dismissal. Accordingly, the court will recommend that
7
plaintiff's complaint be dismissed without prejudice for failing to exhaust his administrative
8
remedies. The undersigned has considered the content of the complaint and the lack of any
9
whistleblower exception to the exhaustion requirement and determined that leave to amend the
10
complaint would be futile. See Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012) (“a prisoner
11
does not comply with [the exhaustion] requirement by exhausting available remedies during the
12
course of the litigation.”).
13
IV.
14
The following information is meant to explain this order in plain English and is not
15
Plain Language Summary for Pro Se Party
intended as legal advice.
16
The court has reviewed the complaint which indicates that you have not filed any
17
administrative grievance concerning the allegations of water contamination at Mule Creek State
18
Prison. According to federal law, you must give the prison a chance to fix the problem before
19
filing suit in federal court. Based on this defect in your complaint that is not fixable, the
20
undersigned is recommending that your complaint be dismissed without prejudice.
21
In accordance with the above, IT IS HEREBY RECOMMENDED that plaintiff’s
22
complaint (ECF No. 1) be dismissed without prejudice for failing to exhaust his administrative
23
remedies.
24
These findings and recommendations are submitted to the United States District Judge
25
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
26
after being served with these findings and recommendations, any party may file written
27
objections with the court and serve a copy on all parties. Such a document should be captioned
28
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
4
1
objections shall be served and filed within fourteen days after service of the objections. The
2
parties are advised that failure to file objections within the specified time may waive the right to
3
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
4
Dated: November 13, 2020
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
5
6
7
8
9
10
11
12
12/cros2462.F&R.exhaust.docx
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?