Trevino v. Martel et al

Filing 48

ORDER granting 36 First MOTION to Dismiss Defendants' Notice of Motion and Motion to Dismiss filed by E. Sanders Johnson, Nolette, Michael Foss, Van Blarcom, Vincent S. Cullen, Michael Martel, Hal Williams. Signed by Judge Charles R. Breyer on 3/25/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 3/26/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL TREVINO, Plaintiff, 12 13 14 15 v. M. MARTEL, Warden, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. C 11-5622 CRB (PR) ORDER GRANTING MOTION TO DISMISS (Docket # 36) 16 17 Plaintiff Daniel Trevino, a Native American prisoner, filed a pro se First 18 Amended Complaint (FAC) under 42 U.S.C. § 1983 alleging various violations 19 of his constitutional rights while incarcerated at San Quentin State Prison 20 (SQSP). Specifically, plaintiff alleges that defendants, SQSP employees and 21 correctional officers, substantially burdened the practice of his Native American 22 religion by denying him the use of tobacco in religious rituals and by disciplining 23 him for possessing tobacco for religious purposes. Plaintiff also alleges that 24 defendants retaliated against him for filing grievances regarding the denial of 25 tobacco by locking the gate to the religious sweat lodge and transferring him to 26 an undesirable part of the prison. He further alleges that defendants have 27 subjected him to cruel and unusual punishment by intentionally placing him in 28 inhumane living conditions (including exposure to mold) and by risking his 1 safety by telling other inmates that the locking of the gate to the religious sweat 2 lodge was plaintiff’s fault. On February 27, 2012, the court screened the 3 complaint pursuant to 28 U.S.C. § 1915A and found plaintiff’s claims 4 cognizable. 5 Defendants now move for dismissal under Federal Rule of Civil Procedure 6 12(b) on the ground that plaintiff failed to properly exhaust available 7 administrative remedies before filing suit, as required by 42 U.S.C. § 1997e(a). 8 Plaintiff filed a document entitled “objection” to defendants’ motion, which the 9 court construes to be his opposition. Defendants filed a reply. Plaintiff also filed 10 an unsolicited surreply. 11 12 DISCUSSION A. 13 Standard of Review Nonexhaustion under 42 U.S.C. § 1997e(a) is an affirmative defense that 14 should be treated as a matter of abatement and brought in an “unenumerated Rule 15 12(b) motion rather than [in] a motion for summary judgment.” Wyatt v. 16 Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (citations omitted). In deciding a 17 motion to dismiss for failure to exhaust administrative remedies under 18 § 1997e(a), the court may look beyond the pleadings and decide disputed issues 19 of fact. Id. at 1119-20. If the court concludes that the prisoner has not exhausted 20 California’s prison administrative process, the proper remedy is dismissal without 21 prejudice. Id. at 1120. 22 B. 23 Analysis The Prison Litigation Reform Act of 1995 (PLRA) amended 42 U.S.C. 24 § 1997e to provide that “[n]o action shall be brought with respect to prison 25 conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 26 confined in any jail, prison, or other correctional facility until such administrative 27 28 2 1 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Although once 2 within the discretion of the district court, exhaustion in prisoner cases covered by 3 § 1997e(a) is now mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). All 4 available remedies must now be exhausted; those remedies “need not meet 5 federal standards, nor must they be ‘plain, speedy, and effective.’” Id. (citation 6 omitted). Even when the prisoner seeks relief not available in grievance 7 proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; 8 Booth v. Churner, 532 U.S. 731, 741 (2001). Similarly, exhaustion is a 9 prerequisite to all inmate suits about prison life, whether they involve general 10 circumstances or particular episodes, and whether they allege excessive force or 11 some other wrong. Porter, 534 U.S. at 532. The PLRA exhaustion requirement 12 requires “proper exhaustion” of available administrative remedies. Woodford v. 13 Ngo, 548 U.S. 81, 93 (2006). 14 The State of California provides its prisoners the right to appeal 15 administratively “any policy, decision, action, condition, or omission by the 16 [CDCR] or its staff that the inmate . . . can demonstrate as having a material 17 adverse effect upon his or her health, safety, or welfare.” 15 CCR § 3084.1(a).1 18 In order to exhaust available administrative remedies within this system, a 19 prisoner must proceed through several levels of appeal: (1) informal review, 20 submitted on a CDC 602 inmate appeal form; (2) first formal level appeal, to an 21 institution appeals coordinator; (3) second formal level appeal, to the institution 22 warden; and (4) third formal level appeal, to the Director of the CDCR. See CCR 23 § 3084.7; Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 2009). A prisoner 24 exhausts the grievance process when he completes the third level of review. 25 26 1 27 Unless otherwise noted, all further references to code sections are to title 15 of the California Code of Regulations. 28 3 1 Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010). An inmate’s obligation to 2 exhaust persists as long as some remedy is available; when that is no longer the 3 case, the prisoner need not further pursue the grievance. Brown v. Valoff, 422 4 F.3d 926, 934-35 (9th Cir. 2005). 5 1. Exhaustion of Plaintiff’s Tobacco-Related Claims 6 The parties do not dispute that the only inmate appeal relating to plaintiff’s 7 tobacco-related claims was the appeal filed by plaintiff on June 7, 2010, 8 identified by Log Number CSQ 3-10-01030. Defendants argue that plaintiff 9 abandoned this appeal after it was cancelled at the third level due to plaintiff’s 10 11 failure to file within the 15-day time limit.2 The record shows that on June 7, 2010, plaintiff filed the above-referenced 12 grievance regarding confiscation of ceremonial tobacco. Doc. #6, Ex. A at 1-3. 13 In his grievance, plaintiff requested that the confiscated tobacco be returned and 14 that the CDCR make an exemption allowing American Indian inmates to use 15 tobacco during religious ceremonies. Id. On July 9, 2010, plaintiff’s grievance 16 was denied at the first level of review. Id. at 8. 17 On August 13, 2010, plaintiff appealed his grievance to the second level of 18 review. Doc. #6, Ex. A at 2-3. On September 21, 2010, plaintiff’s appeal was 19 partially granted at the second level, and his grievance was referred to a Religious 20 Review Committee. Id. at 9-10. On October 15, 2010, the Religious Review 21 Committee determined that the CDCR had already established provisions for the 22 use of tobacco products in Native American religious ceremonies, and denied 23 24 25 26 27 28 2 The regulations in effect in 2010 required an inmate to submit a grievance within fifteen working days of the event or decision being appealed. See CCR § 3084.6(c) (2010). “Working days” are calendar days excluding Saturdays, Sundays, and official state holidays. Id. § 4003(j)(2) (2010). 4 1 plaintiff’s request for return of the confiscated tobacco. Id. at 12-13.3 Plaintiff 2 appealed his grievance at the third level, again requesting that the confiscated 3 tobacco be returned and that Native American inmates be permitted to use 4 tobacco for religious ceremony. Id. at 15-16. Plaintiff submitted his third level 5 appeal on November 10, 2010. Id. at 2. 6 On December 15, 2010, plaintiff’s appeal was cancelled for failure to 7 submit within fifteen working days of the decision being appealed as required by 8 CCR § 3084.6(c) (2010). Doc. #6, Ex. A at 18. The cancellation notice advised 9 plaintiff that he could challenge the cancellation decision and that his original 10 appeal could be resubmitted if such challenge was granted. Id. Plaintiff did not 11 challenge the cancellation. 12 Plaintiff first argues that his appeal was improperly cancelled as untimely 13 due to a clerical error. Doc. #6 at 11. Plaintiff bases this argument on the clerical 14 error that backdated the minutes of the Religious Review Committee hearing. As 15 explained above, however, all parties agree that the hearing took place on 16 October 15, 2010. Plaintiff filed the third level appeal on November 10, 2010, 17 exceeding the limit of fifteen working days. 18 Even assuming there was a clerical error and that plaintiff’s appeal was 19 somehow timely, plaintiff could have disputed the cancellation by submitting a 20 separate appeal. Nothing in the record indicates that plaintiff took any action to 21 challenge the cancellation. Nor is there any indication that he was prevented 22 from doing so. In sum, administrative remedies remained available. 23 Plaintiff argues in the alternative that he is exempt from the exhaustion 24 25 3 27 While the written minutes of the hearing are date-stamped July 20, 2010, defendants state this was a typographical error and that the hearing actually took place on October 15, 2010. K. Mitchell Decl. at ¶ 3. 28 5 26 1 requirement because his appeal was “partially granted” at the second level of 2 review. Specifically, he asserts that the partial grant was a “victory,” making it 3 unreasonable to appeal further. See Opp. at 6 4 “An inmate has no obligation to appeal from a grant of relief, or a partial 5 grant that satisfies him, in order to exhaust his administrative remedies.” Harvey 6 v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010). In Harvey, the prisoner plaintiff 7 filed a grievance, requesting a timely hearing on a disciplinary charge, and he 8 received a decision granting him relief. See id. at 684-85. Five months later, 9 having still received no hearing, the prisoner filed an appeal at the second level of 10 review, which was rejected as untimely. See id. at 685. The Ninth Circuit 11 concluded that the prisoner had indeed exhausted his claim, reasoning, “Once the 12 prison officials purported to grant relief with which [the prisoner] was satisfied, 13 his exhaustion obligation ended. His complaint had been resolved, or so he was 14 led to believe, and he was not required to appeal the favorable decision.” Id. The 15 Court also explained, “Nor is it the prisoner’s responsibility to ensure that prison 16 officials actually provide the relief that they have promised.” Id. 17 In contrast to Harvey, plaintiff did not obtain the relief he sought. 18 Plaintiff’s original grievance requested that the confiscated tobacco be returned to 19 him and that Native American inmates be permitted to practice their religion by 20 freely using ceremonial tobacco. The partially granted appeal did not award such 21 relief. Instead, plaintiff was given a hearing before the Religious Review 22 Committee, which determined that the current CDCR protocol already considered 23 Native American religious needs and denied plaintiff’s request for the return and 24 use of the confiscated tobacco. Plaintiff was obviously dissatisfied with the 25 result of the partial grant because he appealed to the third level of review and 26 made identical requests for relief. This does not amount to the analogous 27 28 6 1 2 3 4 substantive relief found in Harvey. Accordingly, the court finds plaintiff failed to properly exhaust remedies for his tobacco-related claims. 2. Exhaustion of Plaintiff’s Retaliation and Cruel and Unusual Punishment Claims 5 The parties do not dispute that the only inmate appeals arguably relating to 6 plaintiff’s retaliation and cruel and unusual punishment claims were two staff 7 complaints respectively filed on October 15, 2011 and November 1, 2011. Doc. 8 #6, Ex. C at 26-28.4 Defendants argue that plaintiff failed to exhaust these 9 appeals because he never received a response at the third level of review. 10 Plaintiff asserts these appeals were improperly screened out because the appeals 11 coordinator and defendants conspired against him. 12 The record shows that on October 15, 2011, and November 1, 2011, 13 plaintiff filed the two staff complaints at issue. Doc. #6, Ex. C at 40, 42-43. In 14 the October 15, 2011 complaint, plaintiff stated that a correctional officer “has 15 been harassing me . . . because I am in severe pain and cannot walk down the 16 stairs to the lower yard, where I am assigned.” Id. at 40. In the November 1, 17 2011 complaint, plaintiff stated that he had “appeared before [defendant] Foss 18 concerning appeal log no. 10-01030 concerning religious use of tobacco” and 19 requested that “Foss cease and desist from directing staff to harass me.” Id. at 42. 20 On December 9, 2011, SQSP rejected the complaints for failure to specify 21 an act or decision related to the allegations. Id. at 38. The rejection letter stated 22 that plaintiff could resubmit his grievance within thirty days. Id. Plaintiff 23 resubmitted the grievances on December 22, 2011. Id. at 40, 42-43. On January 24 6, 2012, the grievances were rejected for being improperly submitted within 25 26 27 28 4 Because these grievances were ultimately screened out, as discussed below, they were not assigned Log Numbers. See Doc. #6, Ex. C at 38. 7 1 fourteen days of each other. Id. at 37.5 The rejection letter advised plaintiff that 2 he “should take the corrective action necessary and resubmit the appeal within 3 the timeframes specified in CCR 3084.6(a).” Id. The letter further advised 4 plaintiff that he could challenge the cancellation decision. Id. Plaintiff did 5 neither. Plaintiff filed the instant action on November 21, 2011, prior to 6 receiving any of the rejection letters. 7 “[A]ffirmative actions by [prison] staff preventing proper exhaustion, even 8 if done innocently, make administrative remedies effectively unavailable.” 9 Albino v. Baca, 697 F.3d 1023, 1034 (9th Cir. 2012) (footnote omitted). 10 Accordingly, improper screening of a prisoner’s administrative grievances may 11 render administrative remedies “effectively unavailable” such that exhaustion is 12 not required under § 1997e(a). Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 13 2010). To fall within this exception, however, the prisoner must show: “(1) that 14 he actually filed a grievance or grievances that, if pursued through all levels of 15 administrative appeals, would have sufficed to exhaust the claim that he seeks to 16 pursue in federal court, and (2) that prison officials screened his grievance or 17 grievances for reasons inconsistent with or unsupported by applicable 18 regulations.” Id. at 823-24. 19 Plaintiff makes neither showing. First, the lack of specificity in the 20 grievances makes it unclear whether they correspond at all to the claims alleged 21 in this action. Further, plaintiff fails to show that prison officials screened out his 22 grievances for reasons inconsistent with applicable regulations. The rejection 23 letters clearly explained that the reasons for rejection were: (1) the lack of 24 25 5 26 27 28 Regulations in effect since January 28, 2011 provide for rejection of non-emergency grievances if two or more are submitted within fourteen days of each other. See CCR §§ 3084.1(f), 3084.6(a), 3084.6(b)(3) 8 1 specificity and evidence supporting plaintiff’s general allegations; and 2 (2) plaintiff’s failure to file within the required time frames. These reasons are 3 consistent with applicable regulations. See CCR §§ 3084.1(f), 3084.6(a), 4 3084.6(b)(3), 3084.6(b)(6). The second rejection letter also offered plaintiff the 5 opportunity to resubmit and/or challenge the cancellation, and there is no 6 indication that he took these actions or was prevented from doing so. Rather, 7 plaintiff filed the instant action almost immediately after filing the staff 8 complaints. In sum, plaintiff did not even attempt to exhaust administrative 9 remedies before filing suit. Accordingly, the court finds plaintiff failed to properly exhaust remedies 10 11 for his claims asserting retaliation and cruel and unusual punishment. CONCLUSION 12 For the foregoing reasons, defendants’ motion to dismiss for failure to 13 14 properly exhaust available administrative remedies before filing suit, as required 15 by 42 U.S.C. § 1997e(a) is GRANTED and the action is DISMISSED without 16 prejudice. 17 18 19 The clerk shall enter judgment in accordance with this order and close the file. This order terminates Docket No. 36. 20 21 SO ORDERED. 22 DATED: March 25, 2013 23 CHARLES R. BREYER United States District Judge 24 G:\PRO-SE\CRB\CR.11\Trevino, 25 26 27 28 9

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