Parks v. Peterson et al

Filing 31

ORDER by Judge Edward M. Chen Granting 22 Defendants' Motion to Dismiss; and Denying 29 Plaintiff's Motion for Receipt of Payment. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 7/22/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVEN DEAN PARKS,

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Plaintiff,
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS; AND DENYING
PLAINTIFF’S MOTION FOR RECEIPT
OF PAYMENT

v.

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For the Northern District of California

United States District Court

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No. C-12-1352 EMC (pr)

T. PETERSON and DENISE REYES,

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Defendants.
___________________________________/

(Docket Nos. 22, 29)

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I.

INTRODUCTION

On March 16, 2012, Plaintiff Steven Dean Parks, an inmate incarcerated at San Quentin State

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Prison (SQSP), filed a pro se civil rights complaint under 42 U.S.C. § 1983 against Nurse T.

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Peterson and Dr. Denise Reyes. Doc. No. 1. On June 18, 2012, the Court issued an Order of

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Service, finding that Plaintiff stated a cognizable claim against Nurse Peterson and Dr. Reyes for

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deliberate indifference to Plaintiff’s serious medical needs. Doc. No. 4. On January 25, 2013,

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Defendants filed a motion to dismiss based on Plaintiff’s failure to exhaust administrative remedies.

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Doc. No. 22. Plaintiff has filed an opposition, Doc. No. 27, and Defendants have filed a reply, Doc.

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No. 28. Plaintiff also has filed a “motion for receipt for payment of prisoner’s filing fee,” Doc. No.

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29, and a “request for judicial notice of PLRA payment for plaintiff’s forma pauperis,” which the

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Court construes as a motion regarding his trust account, Doc. No. 30.

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For the reasons discussed below, the Court GRANTS Defendants’ motion to dismiss for
failure to exhaust administrative remedies and DENIES Plaintiff’s motion for receipt of payment.

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II.

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STANDARD OF REVIEW

The Prison Litigation Reform Act of 1995 (PLRA) amended 42 U.S.C. § 1997e provides that

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“[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any

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

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

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within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now

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mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). The PLRA exhaustion requirement requires

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“proper exhaustion” of all available administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93

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(2006). Moreover, those remedies “need not meet federal standards, nor must they be ‘plain,
speedy, and effective.’” Porter, 534 U.S. at 524 (citation omitted). Even where the prisoner seeks

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For the Northern District of California

United States District Court

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relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to

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suit. Id.; Booth v. Churner, 532 U.S. 731, 741 (2001). The obligation to exhaust persists as long as

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some remedy is available; when that is no longer the case, the prisoner need not further pursue the

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grievance. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). The PLRA does not require

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exhaustion when circumstances render administrative remedies “effectively unavailable.” Sapp v.

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Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010).

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Nonexhaustion under § 1997e(a) is an affirmative defense, and is properly brought in an

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“unenumerated Rule 12(b) motion rather than [in] a motion for summary judgment.” Wyatt v.

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Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust

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administrative remedies under § 1997e(a), the court may look beyond the pleadings and decide

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disputed issues of fact. Id. at 1119-20. The particular process by which an inmate exhausts

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administrative remedies is governed by the prison’s own grievance procedures. Jones v. Bock, 549

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U.S. 199, 218 (2007). If the court concludes that the prisoner has not exhausted the prison’s

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administrative process, the proper remedy is dismissal without prejudice. Wyatt, 315 F.3d at 1119-

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III.
A.

DISCUSSION

California Department of Corrections and Rehabilitation (CDCR) Procedures
The CDCR provides its inmates the right to appeal administratively “any policy, decision,

demonstrate as having a material adverse effect upon his or her health, safety or welfare.” Cal. Code

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Regs. (CCR) tit. 15, § 3084.1(a). In order to exhaust available administrative remedies within this

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system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal

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written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or

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designee, and (4) third level appeal to the Secretary of the CDCR. Id. § 3084.7; Barry v. Ratelle,

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985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the administrative remedies exhaustion

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For the Northern District of California

action, condition or omission by the department or its staff that the inmate or parolee can

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United States District Court

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requirement under § 1997e(a). Id. at 1237-38.

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Inmate appeals related to health care issues are addressed in the Health Care Appeals Unit at

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each prison. Declaration of C. Harless, SQSP Health Care Appeals Coordinator (Harless Dec.) at

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¶ 2. The appeals coordinator at the Health Care Appeals Office screens all health-related appeals to

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determine whether they comply with the procedural requirements. Id. at ¶ 3; CCR tit. 15,

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§ 3084.5(b)(3). If an appeal complies with the procedural requirements, the appeals coordinator

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accepts it and assigns it for review. Harless Dec. at ¶ 3. If the appeal does not comply with

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procedural requirements, the appeals coordinator may reject or cancel the appeal. Id.; CCR tit. 15,

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§ 3084.6(b). The appeals coordinator returns a rejected or cancelled appeal to the inmate with a

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statement of the reasons for the rejection and instructions for curing the defect or appealing the

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decision. Harless Dec. at ¶ 3; CCR tit. 15, § 3085.5(b)(3). The appeals coordinator may cancel an

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appeal if an inmate refuses to cooperate during an interview. Harless Dec. at ¶ 3; CCR tit. 15,

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§ 3084.6(c)(8). Although a cancelled appeal may not be submitted for further review, the inmate

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may separately appeal the cancellation. Harless Dec. at ¶ 3; CCR tit. 15, § 3084.6(e). A cancelled

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appeal does not exhaust administrative remedies. Id. § 3084.1(b).

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At least one face-to-face interview with the inmate is required at the first level of review.

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CCR tit. 15, § 3084.7(e). If the inmate refuses to be interviewed or to cooperate with the

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interviewer, the appeal may be cancelled. Id. 3084.6(c)(8).

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B.

Plaintiff’s Appeal
Mr. Harless, in his role as SQSP Health Care Appeals Coordinator, handled Plaintiff’s appeal

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No. SQ HC 11036001, in which Plaintiff sought renewal of his lower-bunk bed chrono. Harless

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Dec. ¶ 4. On November 2, 2011, the Health Care Appeals Office received Plaintiff’s appeal. Id. at

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¶ 5. Mr. Harless screened the appeal and returned it to Plaintiff that same day because it did not

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appear that Plaintiff had raised the issue with a health care clinician, which is a prerequisite to filing

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an appeal. Id. On November 4, 2011, Plaintiff resubmitted the appeal to the appeals office with an

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explanation that a doctor had already denied his request for a lower-bunk bed chrono. Id. at ¶ 6.

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Mr. Harless then accepted the appeal and assigned it for review. Id.
On November 8, 2011, Nurse Peterson met with Plaintiff to discuss the appeal. Id. Nurse

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Peterson cancelled the appeal on the ground that Plaintiff refused to cooperate with her during the

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interview. Id. On November 9, 2011, Mr. Harless sent Plaintiff a letter notifying him that the

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appeal had been cancelled for failure to cooperate. Id., Ex. A. The letter explained that the appeal

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could not be submitted for further review but, if Plaintiff disagreed with the reason for the

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cancellation, he could submit a separate appeal challenging that decision. Id.

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On November 28, 2011, Plaintiff requested a second-level review of his appeal, stating that

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Nurse Peterson had been deliberately indifferent to his medical needs. Id. at ¶ 7. On the same day,

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Mr. Harless returned this appeal to Plaintiff with a letter explaining that he could not submit the

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appeal for further review because it had been cancelled. Id., Ex. A. The letter also informed

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Plaintiff that if he disagreed with the cancellation decision, he could submit a separate appeal to the

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appeals office. Id.

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Plaintiff then submitted the same appeal to the Office of Third Level Appeals – Health Care.

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Id. at ¶ 8. On February 9, 2012, the appeal was returned to Plaintiff because it had been cancelled at

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the first level for failure to cooperate. Id. This letter included a note at the bottom stating: “Once

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an appeal has been cancelled that appeal may not be resubmitted. However a separate appeal can be

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filed on the cancellation decision to the Chief at the Office of Third Level Appeals. When an appeal

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is cancelled, your administrative remedies have not been exhausted.” Id., Ex. A. Plaintiff never

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filed a separate appeal challenging the cancellation decision. Id. at ¶ 9.

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In support of their motion to dismiss, Defendants submit the declaration of L.D. Zamora,

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Chief of the Inmate Correspondence and Appeals Branch (ICAB). ICAB is part of the California

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Correctional Health Care Services (CCHCS), which is the part of CDCR that is responsible for

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providing medical, dental and mental health services to adult inmates. Declaration of L.D. Zamora

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(Zamora Dec.) at ¶ 1. Mr. Zamora’s duties include overseeing CDCR administrative appeals

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regarding medical, dental and mental health issues. Id. at ¶ 2. First and second level health care

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appeals are handled by staff located at the respective penal institutions and third level appeals are

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handled by ICAB staff located at CCHCS headquarters. Id.

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All levels of appeals received at ICAB are tracked through a computer database system
known as the Health Care Appeals and Risk Tracking System (HCARTS). Id.at ¶ 4. At the request

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of the Attorney General’s Office, Mr. Zamora reviewed the HCARTS records for Plaintiff. Id. at

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¶ 5. A review of Plaintiff’s Health Care Services Appeals history shows that, in November 2011, he

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submitted Appeal No. SQHC 1103600, requesting a lower-bunk chrono and that this appeal was

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cancelled at the first level of review for failure to cooperate. Id. at ¶ 6, Ex. A. Plaintiff then

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submitted the cancelled appeal at the second and third levels of review, both of which were rejected

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because he did not separately appeal the cancellation decision. Id. at ¶ 6. Since the rejection of his

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appeals, Plaintiff has submitted no other health care appeal seeking a lower-bunk chrono. Id.

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The evidence submitted by Defendants satisfies their burden to establish that Plaintiff did not

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exhaust his administrative remedies before filing this action. Thus, their motion to dismiss must be

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granted unless Plaintiff submits evidence showing that he did, in fact, appeal the cancellation of his

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appeal or file a new appeal seeking a lower-bunk bed chrono, which properly has been exhausted.

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In his opposition to Defendants’ motion to dismiss, Plaintiff proffers three arguments for

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denying the motion. Plaintiff first argues that Defendants have not submitted evidence of his failure

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to cooperate with Nurse Peterson. Whether Plaintiff failed to cooperate with Nurse Peterson would

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have been addressed in an appeal of the cancellation of his original appeal, had Plaintiff filed such

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an appeal. However, it is not relevant to whether Plaintiff exhausted his remedies regarding his

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original appeal under the appropriate regulations. After Plaintiff’s appeal was cancelled, prison

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officials informed him of the proper procedure for dealing with such a situation. In three different

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letters from prison officials, Plaintiff was notified that he must submit a separate grievance

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challenging the cancellation of his appeal and that his continued submission of the cancelled appeal

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would not exhaust his administrative remedies. Because Plaintiff did not follow these instructions,

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he did not exhaust his administrative remedies.

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Plaintiff next argues that exhaustion is excused because the cancellation of his appeal

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demonstrates Defendants’ intent to prolong the exhaustion of his administrative remedies and to

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prolong his pain and suffering from lack of a lower-bunk bed. As discussed previously, inmates

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must follow the procedures set forth in the California Code of Regulations to exhaust administrative

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remedies. Ngo, 548 U.S. at 93. This obligation persists as long as some remedy is available; when
that is no longer the case, the prisoner need not further pursue the grievance. Brown, 422 F.3d at

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For the Northern District of California

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934-35. Here, Plaintiff had administrative remedies available to him. He could have appealed the

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cancellation of his appeal, or he could have filed a new appeal of the denial of a lower-bunk chrono.

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The cancellation of his appeal did not prevent him from continuing the appeal process and, thus, did

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not excuse him from exhausting these remedies.

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Last, Plaintiff argues that he exhausted administrative remedies by submitting the cancelled

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appeal to the third level of review. This argument is without merit. Plaintiff persisted in submitting

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his cancelled appeal to the next two levels of review despite notifications of the proper procedure he

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must follow. As discussed above, inmates must follow the procedures set forth in the regulations to

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exhaust their administrative remedies. See Ngo, 548 U.S. at 90 (administrative exhaustion “means

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using all steps that the agency holds out, and doing so properly”) (emphasis in original).

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Because exhaustion of administrative remedies is required before a civil rights case may

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proceed in federal court and because the evidence shows that Plaintiff failed to exhaust her

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administrative remedies, Defendants’ motion to dismiss based on lack of exhaustion is granted.

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Dismissal is without prejudice to Plaintiff refiling his deliberate indifference claim against Nurse

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Peterson and Dr. Reyes in a new action if he can show that he exhausted administrative remedies or

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that he is excused from doing so.

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C.

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Plaintiff’s Motions
On April 18, 2013, Plaintiff filed a motion for receipt of payment of his filing fee. On May

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6, 2013, Plaintiff filed a document entitled, “request for judicial notice of PLRA payment.” This

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document appears to be a motion in which Plaintiff argues that, on January 4, 2013, the prison

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incorrectly deducted $20.00 from his prison trust account for partial payment of his filing fee, which

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is more than the twenty percent per month that is supposed to be deducted. Plaintiff points out that

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the prison also deducted from his trust account a partial payment of a restitution fine for a criminal

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case so that he was left with only $45.00 in his trust account. He requests that the Court order the

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CDCR to refrain from removing seventy-five percent of the money in his trust account. These
motions are DENIED.

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For the Northern District of California

United States District Court

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The instructions attached to the Order Granting Plaintiff’s in forma pauperis application,

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Doc. No. 3, indicates that, “on a monthly basis, 20 percent of the preceding month’s income credited

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to the prisoner’s trust account should be deducted and forwarded to the court each time the amount

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in the account exceeds ten dollars ($10.00).” See Doc. No. 3. The trust account statement submitted

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by Plaintiff indicates that, on January 4, 2013, $100.00 was credited to his trust account. Twenty

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percent of $100 is $20.00. Thus, a $20.00 payment towards Plaintiff’s filing fee was correct. The

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fact that a partial payment for Plaintiff’s criminal restitution fine was also made from his trust

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account is not relevant to the computation of the filing fee payment.

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Therefore, Plaintiff’s request for an Order to the CDCR regarding how it manages Plaintiff’s

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trust account is denied. Furthermore, Plaintiff’s motion for receipt of payment is denied; the

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prison’s trust account statement indicates the amounts deducted for payment of filing fees each

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month.

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IV.

CONCLUSION

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For the reasons discussed above, Defendants’ motion to dismiss for failure to exhaust

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administrative remedies is granted. Plaintiff’s claim against Nurse Peterson and Dr. Reyes is

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dismissed without prejudice to refiling in a new action if he can show that he has exhausted it or is

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excused from doing so.

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Plaintiff’s motions regarding his trust account fees are denied.

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The Clerk of the Court shall terminate all pending motions, enter judgment and close the file.

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This order terminates Docket Nos. 22 and 29.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: July 22, 2013
_________________________
EDWARD M. CHEN
United States District Judge

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