Ortega v. City of Santa Clara et al

Filing 105

DIRECTING DEFENDANTS TO FILE A RESPONSE TO PLAINTIFFS MOTION FOR RECONSIDERATION. Signed by Judge Saundra Brown Armstrong on 10/30/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 10/31/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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6 CARLOS ARMANDO ORTEGA,

Plaintiff,

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vs.

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9 DR. MARK RITCHIE, et al.,

Case No: C 09-5527 SBA (pr)
ORDER DIRECTING
DEFENDANTS TO FILE A
RESPONSE TO PLAINTIFF’S
MOTION FOR
RECONSIDERATION

Defendants.

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On September 26, 2013, the Court dismissed Plaintiff Carlos Armando Ortega’s pro

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se civil rights action for failure to exhaust administrative remedies as required by the Prison

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Litigation Reform Act (“PLRA”). Plaintiff has since filed a motion for reconsideration

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along with several other motions. Dkt. 96, 97, 98, 101. As will be set forth below, the

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Court directs Defendants to file a response to the motion for reconsideration. The

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remaining motions will be held in abeyance pending the submission of the additional briefs.

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I.

BACKGROUND

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On November 20, 2009, Plaintiff, an inmate at the Santa Clara County Jail

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(“SCCJ”), filed this pro se civil rights action under 42 U.S.C. § 1983 alleging that SCCJ

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medical staff were deliberately indifferent to his serious medical needs by denying him

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mental health care treatment from March 2007 through September 2009. He also alleged

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that from May 13, 2009 through September 29, 2009, SCCJ correctional officers violated

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his due process rights by failing to provide him with a process to object to his housing

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assignment.

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On September 26, 2013, the Court issued its Order Granting Defendants’ Motion to
Dismiss and Dismissing All Claims as Unexhausted. Dkt. 94. The Court concluded that

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Plaintiff had failed to exhaust administrative remedies as required by the PLRA, and

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therefore, his claims were not properly before the Court. The Court dismissed the action

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without prejudice.

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On October 16, 2013, Plaintiff filed a motion pursuant to Federal Rule of Civil

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Procedure 60(b) for the Court to reconsider its September 26 order dismissing the

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complaint without prejudice. Dkt. 96. On the same date, Plaintiff filed a motion for a

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decision on his motion for summary judgment. Dkt. 97.

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On October 21, 2013, Plaintiff filed a Notice of Appeal from the Court’s September
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pauperis on appeal, as well as a motion to maintain his pro per privileges on appeal. Dkts.

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98, 101.

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On October 25, 2013, the Ninth Circuit Court of Appeals referred the matter to this

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Court for a determination of whether Plaintiff’s in forma pauperis status should continue

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under 28 U.S.C. § 1915(a)(3) for appeal. Dkt. 103.

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The motion to reconsider was filed before the Notice of Appeal, and thus is timely.

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See Fed. R. Civ. P. 60(b). The appeal thus does not become effective until the motion to

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reconsider is ruled upon. See Fed. R. App. P. 4(a)(4). Accordingly, this Court will first

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consider Plaintiff’s pending Rule 60(b) motion prior to making a determination as to

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whether Plaintiff’s in forma pauperis status should continue for his appeal. In addition, for

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the reasons outlined below, the Court will defer ruling on the aforementioned motions until

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after the parties submit their briefs relating to the motion for reconsideration.

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II.

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DISCUSSION
Where a district court’s ruling has resulted in a final judgment or order, a motion for

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reconsideration may be filed under Rule 60(b) of the Federal Rules of Civil Procedure.

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Rule 60(b) provides for reconsideration where one or more of the following is shown:

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(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence

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which by due diligence could not have been discovered before the court’s decision;

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(3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied;
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(6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc.,

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5 F.3d 1255, 1263 (9th Cir.1993). Rule 60(b) provides a mechanism for the parties to seek

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relief from a judgment when “it is no longer equitable that the judgment should have

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prospective application,” or when there is any other reason justifying relief from judgment.

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Jeff D. v. Kempthorne, 365 F.3d 844, 853-54 (9th Cir. 2004) (quoting Fed. R. Civ. P.

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60(b)). “Although the application of Rule 60(b) is committed to the discretion of the

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district courts . . . , as a general matter, Rule 60(b) is remedial in nature and must be

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liberally applied.” TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 695-96 (9th Cir.

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2001) (internal quotation marks and ellipsis omitted).

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In adjudicating Defendants’ motion to dismiss for failure to exhaust administrative

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remedies, the Court considered twenty-three grievances identified by Plaintiff. These

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grievances raised a plethora of complaints regarding medical and non-medical issues,

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including officer misconduct, housing in segregation, inmate mail, clothing exchange,

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personal property, water quality and visitation. In their motion, Defendants argued that

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Plaintiff’s claims were not fully exhausted and were thus not properly before the Court.

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The PLRA provides that “[n]o action shall be brought with respect to prison conditions

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under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail,

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prison, or other correctional facility until such administrative remedies as are available are

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exhausted.” 42 U.S.C. § 1997e(a). The PLRA requires the inmate to exhaust every level in

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the administrative process. See McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002).

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Exhaustion is a prerequisite to the inmate’s filing of a lawsuit. See Porter v. Nussle, 534

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U.S. 516, 524 (2002).

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Section 1073 of Title 15 of the California Code of Regulations affords county jail

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inmates a right to appeal and have resolved grievances relating to their confinement.

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Pursuant to section 1073, Santa Clara County has established grievance procedures for

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inmates at SCCJ. See SCCJ Inmate Orientation and Rule Book at 8-9. An inmate may

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grieve “any condition of confinement over which the Department of Correction has

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control” by first raising the complaint informally with the Officer in charge of the inmate’s
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housing unit. Id. at 8. If the grievance is not resolved, the inmate may then complete an

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“Inmate Grievance Form” which may be submitted to any Officer. Id. If the Officer is

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unable to resolve the grievance, it is forwarded to the Sergeant; if the Sergeant cannot

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resolve it, the grievance is referred to the Watch Commander, who will “determine the

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appropriate actions to take and ensure [the inmate] receive[s] a written response.” Id.

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Finally, an inmate may then appeal the Watch Commander’s decision by writing a letter to

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the Division Commander of the facility where the inmate is housed. Id. The Division

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Commander may “either affirm or reverse the decision and will give [the inmate] a written

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response.” Id. at 9. If the inmate prefers to “correspond confidentially” with the Chief of

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Correction instead of the Division Commander, the inmate may do so, and he will receive a

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“written response.” Id. The addresses of the Division Commander and Chief of Correction

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are listed under the “Grievance Procedure” section of the jail’s Inmate Orientation and Rule

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Book. Id.

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In this case, the Court noted that while Plaintiff filed multiple grievances pertaining

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to a vast range of issues—including six relevant grievances relating to alleged inadequate

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mental health care treatment and housing assignment concerns—he nonetheless was

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required to have appealed the Watch Commander’s decision by writing a letter to the

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Division Commander or the Chief of Correction in order to properly exhaust his claims.

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The Court found that nothing in the record demonstrated that Plaintiff had done so. To the

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contrary, Division Commander David Sepulveda declared that Plaintiff’s Department of

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Correction file does not contain any letters of appeal addressed to him or any subsequent

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Division Commander relating to the alleged inadequate mental health care treatment or

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improper housing assignment during the relevant time frame.

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The Court also noted that Plaintiff had claimed, in a conclusory manner, that he had

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exhausted his administrative remedies regarding his claims by filing other forms and letters,

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including the following: Complaints to the Department of Correction’s Internal Affairs

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Unit and to the California Department of Corrections and Rehabilitation;

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Medical/Psychiatric Referral Forms; Health Services Request Forms; Inmate Request
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Forms relating to mental health treatment and admission to the mental health ward; state

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hospital records; and letters requesting assistance from the Mental Health Advocacy

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Project. The Court, however, found unavailing Plaintiff’s claim that he satisfied the

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requirements of the grievance procedure by submitting the aforementioned forms and

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letters, given that none of them was addressed to either the Division Commander or the

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Chief of Correction.

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As discussed, it is Plaintiff’s responsibility to complete “Inmate Grievance Forms”

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and to pursue his grievances to the Division Commander’s level by writing a letter to either

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the Division Commander or the Chief of Correction. See SCCJ Inmate Orientation and

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Rule Book at 9. The PLRA “requires proper exhaustion of administrative remedies.” Sept.

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26, 2013 Order at 4 (citing Woodford v. Ngo, 548 U.S. 81, 83, (2006)) (emphasis in

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original). In granting Defendants’ motion to dismiss, the Court concluded that “the record

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in this case demonstrates that Plaintiff had the opportunity and ability to properly exhaust,

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but failed to do so.” Id. at 8. Therefore, Plaintiff’s claims were dismissed as

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unexhausted—meaning that Plaintiff is free to refile his lawsuit after fully and properly

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exhausting his administrative remedies.

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In the instant motion for reconsideration, Plaintiff contends that the Court erred in

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dismissing his claims as unexhausted on the grounds that he was successful in his efforts to

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exhaust these claims. Again, Plaintiff makes a conclusory allegation that the SCCJ Inmate

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Orientation and Rule Book provided more appeal options beyond the aforementioned

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grievance procedure. Plaintiff claims that on “pages 4 and 5” thereof there are eight other

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options that an inmate may use to exhaust his administrative grievance procedures.

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However, Plaintiff has failed to attach these particular pages, and instead claims that proof

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of the same is already in the Court’s and Defendants’ “possession by Affidavits and

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Exhibits.” Mot. for Recons. at 3.

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The Court notes that the evidence presented in support of and in opposition to

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Defendants’ motion to dismiss was quite voluminous. In addition, Plaintiff’s present

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motion for reconsideration, including attachments, totals eighty-eight pages. It is not the
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Court’s role to sift through the record to attempt to locate the specific pages of the SCCJ

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Inmate Orientation and Rule Book that Plaintiff claims warrant reconsideration. See Bias

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v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (“A district court lacks the power to act

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as a party’s lawyer, even for pro se litigants.”); Indep. Towers of Wash. v. Wash., 350 F.3d

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925, 929 (9th Cir. 2003) (noting that the court is not obligated to consider matters not

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specifically brought to its attention). In addition, the Court notes that Defendants

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previously attached pages eight and nine of the SCCJ Inmate Orientation and Rule Book as

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Exhibit A to the declaration of Sabina DeLara, and that these pages specifically referred to

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the “Grievance Procedure” at SCCJ. As such, it is highly questionable whether there is

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another section in the SCCJ Inmate Orientation and Rule Book relating to grievances which

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recites eight additional options to exhaust administrative grievances. Nonetheless, based

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on the record presented, the Court is unable to render an informed decision on this issue

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without first having the opportunity to review pages four and five of the aforementioned

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publication.

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In addition, Plaintiff now claims that he actually filed “a letter to Chief of

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Correction[] and Captain of Internal Affairs.” Mot. for Recons. at 3. In particular, Plaintiff

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states he chose the “last option” by submitting a letter to the Chief of Correction and

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Captain of Internal Affairs; however, he has “no copies of [these] letters.” Id. The Court

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notes that nowhere in his prior pleadings, including his opposition to Defendants’ motion to

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dismiss, did Plaintiff claim that he wrote such a letter to the Chief of Correction. Rather, he

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asserted that he never received a response from either the Chief of Correction or Captain.

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Again, however, because there is nothing in the record to refute Plaintiff’s new claim, the

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Court cannot, at this juncture, ascertain whether it has merit.

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Accordingly, in light of Plaintiff’s allegations above, the Court directs Defendants to

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file a response addressing Plaintiff’s claim that he did, in fact, exhaust his administrative

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remedies as to all of his claims in this action. The parties shall abide by the briefing

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schedule outlined below.

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III.

CONCLUSION

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For the reasons stated above,

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IT IS HEREBY ORDERED THAT:

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1.

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By no later than fourteen (14) days from the date this Order is filed,

Defendants shall file and serve their response to Plaintiff’s motion for reconsideration.
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If Plaintiff wishes to file a reply brief, he shall do so no later than fourteen

(14) days after the date Defendants’ response is filed.
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The motion for reconsideration shall be deemed submitted as of the date the

reply brief is due. The Court will hold Plaintiff’s other pending motions, including his

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request to proceed in forma pauperis on appeal, until after the motion for reconsideration is

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resolved.

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4.

Pursuant to Federal Rule of Appellate Procedure 24(a)(4), the Clerk is

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directed to provide notice of this Order to the Ninth Circuit Court of Appeals and to the

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parties.

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IT IS SO ORDERED.
Dated: October 30, 2013

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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