Ortega v. Davis et al

Filing 7

ORDER DISMISSING CERTAIN PLAINTIFFS; DISMISSING PLAINTIFF ORTEGA'S CLAIMS AS UNEXHAUSTED; AND TERMINATING AS MOOT PLAINTIFF ORTEGA'S PENDING MOTIONS. Signed by Judge Saundra Brown Armstrong on 2/4/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 2/5/2014)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 7 8 ORDER DISMISSING CERTAIN PLAINTIFFS; DISMISSING PLAINTIFF ORTEGA'S CLAIMS AS UNEXHAUSTED; AND TERMINATING AS MOOT PLAINTIFF ORTEGA'S PENDING MOTIONS Plaintiffs, 5 6 No. C 12-4402 SBA (PR) CARLOS ARMANDO ORTEGA, et al., v. SERGEANT DAVIS, et al., Defendants. / 9 INTRODUCTION United States District Court For the Northern District of California 10 11 Plaintiff Ortega (hereinafter "Plaintiff") is currently a pretrial detainee at the Santa 12 Clara County Jail ("SCCJ"). He brings the instant pro se civil rights action pursuant to 42 13 U.S.C. § 1983 asserting claims on behalf of himself and his two brothers, Angel G. and 14 Alexander Rocha. Plaintiff has also filed a motion for leave to proceed in forma pauperis. 15 16 Venue is proper because the events giving rise to the claim are alleged to have occurred at SCCJ, which is located in this judicial district. See 28 U.S.C. § 1391(b). 17 In his complaint, Plaintiff names the following Defendants who appear to be 18 employed at SCCJ: Sergeants Davis and Smith; and Officers Fortino, Luperini, J. Zmurk, 19 Bettencourt, Price, Reyes, Kelter, Alverez, Cabberea, "Lopez (1)," "Lopez (2)," Marichala 20 and Mandoza. Plaintiff also requests the appointment of counsel and a restraining order 21 against Defendants. The Court now conducts its initial review of the complaint pursuant to 22 28 U.S.C. § 1915A. 23 24 BACKGROUND Plaintiff has filed three other civil rights actions in this Court: Ortega v. Ritchie, et al., 25 No. C 09-5527 SBA (PR) ("Ritchie"), Ortega v. Barbasa, et al., No. C 11-1003 SBA (PR) 26 and Ortega v. Flavetta, et al., No. C 12-3426 KAW (PR) ("Flavetta"). Plaintiff has consented 27 to magistrate judge jurisdiction in the Flavetta case; therefore, it has been reassigned to 28 Magistrate Judge Kandis Westmore. The two other cases have been dismissed for failure to 1 exhaust administrative remedies under the Prison Litigation Reform Act of 1995 ("PLRA"), 2 and both are currently on appeal. Because the instant complaint contains sparse background 3 information, the Court takes judicial notice of the relevant background information from the 4 Ritchie and Flavetta cases. Beginning in March 2007, Plaintiff was housed at SCCJ as a pretrial detainee facing 5 6 charges of assault with a deadly weapon. (May 2, 2011 Order in Ritchie at 1-3.) Plaintiff 7 alleges that he suffers from the severe mental disorder of bi-polar schizophrenia, that he has 8 a history of being on medication and was hospitalized from 1997 to 2009. (Id.) In 9 September 2007, Plaintiff was found to be incompetent to stand trial. (Id.) In Flavetta (filed United States District Court For the Northern District of California 10 on June 29, 2012 and the only other case still pending in this Court), Plaintiff claims he 11 suffers from a severe mental illness which causes him to hear voices and to have irrational 12 thoughts against officers and that he is still being "denied mental health treatment and 13 housing in a mental health ward." (June 10, 2013 Order in Flavetta at 3.) 14 In the instant complaint filed on August 21, 2012, Plaintiff alleges that he is a pretrial 15 detainee at SCCJ. (Comp. at 1 of 3.) On April 13, 2012, he claims Defendants threatened to 16 kidnap his brothers, and that Defendants did so -- illegally holding his brothers at SCCJ and 17 severely beating them. (Id.) Plaintiff alleges that, he suffers "day and night," hearing his 18 brothers yelling for help. (Id.) Plaintiff alleges that his brothers are being beaten by inmates 19 in addition to Defendants and that Defendants are denying his brothers medical treatment for 20 their injuries. (Id.) Based on these allegations, Plaintiff asserts Fourteenth Amendment1 21 claims on behalf of himself as well as his brothers. Plaintiff seeks injunctive relief and 22 monetary damages on their behalf. DISCUSSION 23 24 25 I. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 26 27 1 See Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010) ("Although the Fourteenth Amendment's Due Process Clause, rather than the Eighth Amendment's 28 protection against cruel and unusual punishment, applies to pretrial detainees, we apply the same standards in both cases."). 2 1 seeks redress from a governmental entity or officer or employee of a governmental entity. 2 See 28 U.S.C. § 1915A(a). In its review, the court must identify cognizable claims and 3 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may 4 be granted or seek monetary relief from a defendant who is immune from such relief. Id. 5 § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. Balistreri v. 6 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 7 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the color United States District Court For the Northern District of California 10 of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 11 II. Dismissal of Certain Plaintiffs Plaintiff purports to bring claims on behalf of his siblings, which, as a pro se plaintiff, 12 13 he cannot do. See Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) ("[A] litigant 14 appearing in propria persona has no authority to represent anyone other than himself."). As 15 the sole signor of the pleadings, Plaintiff may only assert legal claims on behalf of himself, 16 and not his brothers. Accordingly, Plaintiff's brothers, identified as Angel and Alexander 17 Rocha, and all claims asserted on their behalf by Plaintiff, are DISMISSED. Said dismissal 18 is without prejudice to each of Plaintiff's brother's right to file a civil rights action to assert 19 their own claims.2 20 III. 21 Plaintiff's Claims The only claim alleged in the pleadings that references Plaintiff by name is that the 22 aforementioned illegal treatment of his brothers constitutes "conspiracy to violate civil rights 23 and murder by retaliation against [Plaintiff] and [the] Rocha family." However, a threshold 24 question which must be answered before Plaintiff can proceed with any of his claims is 25 26 2 The Court notes that neither Angel nor Alexander Rocha have filed any statements or documents in this action indicating whether they wish to pursue suit against Defendants. 27 There is also nothing in the record, aside from Plaintiff's statements, confirming that they are being housed at SCCJ. However, out of an abundance of caution, the Court directs the Clerk 28 of the Court to send copies of this Order to Angel and Alexander Rocha at SCCJ, as directed below. 3 1 2 whether he has exhausted available administrative remedies with respect to each claim. The PLRA amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought 3 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 4 prisoner confined in any jail, prison, or other correctional facility until such administrative 5 remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion in prisoner 6 cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). 7 Exhaustion is a prerequisite for all prisoner suits regarding the conditions of their 8 confinement, whether they involve general circumstances or particular episodes, and whether 9 they allege excessive force or some other wrong. Id. at 532. United States District Court For the Northern District of California 10 The PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 11 548 U.S. 81, 83 (2006). "Proper exhaustion demands compliance with an agency's deadlines 12 and other critical procedural rules because no adjudicative system can function effectively 13 without imposing some orderly structure on the course of its proceedings." Id. at 90-91. 14 Thus, compliance with prison grievance procedures is required by the PLRA to properly 15 exhaust. Id. 16 Section 1073 of Title 15 of the California Code of Regulations provides county jail 17 inmates with a right to appeal and have resolved grievances relating to their confinement. 18 Pursuant to § 1073, Santa Clara County has established grievance procedures for inmates at 19 SCCJ. (Inmate Orientation and Rule Book at 8-9.)3 An inmate may grieve "any condition of 20 confinement over which the Department of Correction has control" by first raising the 21 complaint informally with the Officer in charge of the inmate's housing unit. (Id. at 8.) If the 22 grievance is not resolved, the inmate may then complete an "Inmate Grievance Form" and 23 submit it to any Officer. (Id.) If the Officer cannot resolve the grievance, it is forwarded to 24 the Sergeant; if the Sergeant cannot resolve it, to the Watch Commander, who will 25 "determine the appropriate actions to take and ensure [the inmate] receive[s] a written 26 response." (Id.) Finally, an inmate may then appeal the Watch Commander's decision by 27 3 28 Defendants from the 2009 case have attached a copy of SCCJ's grievance procedures, which are included in the jail's Inmate Orientation and Rule Book. (DeLara Decl. in 2009 case, Ex. A.) 4 1 writing a letter to the Division Commander of the facility where the inmate is housed. (Id.) 2 The Division Commander will "either affirm or reverse the decision and will give [the 3 inmate] a written response." (Id. at 9.) If the inmate prefers to "correspond confidentially" 4 with the Chief of Correction instead of the Division Commander, the inmate may do so, and 5 he will receive a "written response." (Id.) The addresses of the Division Commander and 6 Chief of Correction are listed under the "Grievance Procedure" section of the jail's Inmate 7 Orientation and Rule Book. (Id.) 8 An action must be dismissed unless the prisoner exhausted his available administrative remedies before he or she filed suit, even if the prisoner fully exhausts while 10 United States District Court For the Northern District of California 9 the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). If the district 11 court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy 12 is dismissal without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). A 13 prisoner's concession to non-exhaustion is a valid ground for dismissal, so long as no 14 exception to exhaustion applies. Id. Accordingly, a claim may be dismissed without 15 prejudice if it is clear from the record that the prisoner has conceded that he did not exhaust 16 administrative remedies. Id. 17 Here, Plaintiff concedes that he has failed to exhaust his administrative remedies prior 18 to filing this action. On the first page of his complaint, Plaintiff answered "no" to the 19 question, "Did you present the facts in your complaint for review through the grievance 20 procedure?" (Compl. at 1.) In addition, there is nothing in the record that shows that 21 Plaintiff met the requirements of the aforementioned grievance procedure at SCCJ. 22 Furthermore, Plaintiff has not presented any extraordinary circumstances which might 23 compel that he be excused from complying with PLRA's exhaustion requirement. Cf. Booth 24 v. Churner, 532 U.S. 731, 741 n.6 (2001) (courts should not read "futility or other 25 exceptions" into § 1997e(a)). Accordingly, Plaintiff's claims are subject to dismissal without 26 prejudice to refiling after exhausting California's prison administrative process. See 27 McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (action must be dismissed 28 without prejudice unless prisoner exhausted available administrative remedies before he filed 5 1 suit, even if prisoner fully exhausts while the suit is pending). CONCLUSION 2 3 For the foregoing reasons, 4 IT IS HEREBY ORDERED THAT: 5 1. Plaintiff's brothers, Angel and Alexander Rocha, are DISMISSED as party- 6 plaintiffs, and all claims asserted on their behalf in this action are DISMISSED without 7 prejudice to their right to file a separate civil action in each of their own names. The Court 8 directs the Clerk to send copies of this Order to Angel G. Rocha and Alexander Rocha at 9 SCCJ. United States District Court For the Northern District of California 10 11 12 2. Plaintiff's claims are DISMISSED without prejudice to refiling after exhausting California's prison administrative process. 3. The Clerk shall enter judgment, terminate as moot any pending motions -- 13 including Plaintiff's requests for a temporary restraining order and for appointment of 14 counsel, and close the file. 15 IT IS SO ORDERED. 16 DATED: 2-4-14 SAUNDRA BROWN ARMSTRONG United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\CR.12\Ortega4402.Dismiss(unexh).frm 6

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