Sexton v. San Francisco Sheriff Department et al

Filing 20

ORDER by Judge Ronald M. Whyte Granting 15 Motion to Dismiss. (jg, COURT STAFF) (Filed on 12/19/2012)

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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 MARVIN R. SEXTON, JR., Plaintiff, 12 13 14 ) ) ) ) ) ) ) ) ) ) ) v. SAN FRANCISCO SHERIFF DEPARTMENT, et al., 15 Defendants. 16 17 No. C 11-3460 RMW (PR) ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (Docket No. 15.) Plaintiff, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, 18 alleging that defendants used excessive force and exhibited cruel and unusual punishment 19 against him. Defendants have moved to dismiss this action for failure to exhaust. Although 20 given the opportunity, plaintiff did not file an opposition. On May 22, 2012, defendants filed a 21 reply. On July 31, 2012, the court provided plaintiff an opportunity to file a supplemental 22 opposition pursuant to Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012). Plaintiff did not 23 file a supplemental opposition. Having carefully considered the papers submitted, the court 24 GRANTS defendants’ motion to dismiss for the reasons set out below. 25 26 27 BACKGROUND According to the complaint, on January 20, 2011, plaintiff was leaving the interview room at the San Francisco County Jail when Deputy Frietzache put his hands on plaintiff’s 28 Order Granting Defendants’ Motion to Dismiss G:\PRO-SE\SJ.Rmw\CR.11\Sexton360mtdexh.wpd 1 shoulders. After plaintiff told Deputy Frietzache to remove his hands, Deputy Frietzache threw 2 plaintiff to the floor and began punching him in the face. Deputy Frietzache also slapped and 3 kicked plaintiff while plaintiff attempted to curl up into a ball even though he was handcuffed 4 and shackled. Plaintiff was denied medical treatment and placed in “D block” for over five 5 hours with no restroom facilities. 6 On January 24, 2011, plaintiff was being escorted back to a cell while in leg shackles and 7 handcuffs (which were chained to the shackles). Deputy Jones grabbed plaintiff’s chain and 8 Deputy Avila bent plaintiff’s wrist and fingers backward, causing a deep cut and bleeding in 9 plaintiff’s wrist. Plaintiff was refused medical treatment. 10 11 DISCUSSION The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 12 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 13 prisoner confined in any jail, prison, or other correctional facility until such administrative 14 remedies as are available are exhausted.” 28 U.S.C. § 1997e(a). Nonexhaustion under 15 § 1997e(a) is an affirmative defense; that is, defendants have the burden of raising and proving 16 the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding 17 a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the 18 pleadings and decide disputed issues of fact. Id. at 1119-20. If the court concludes that the 19 prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal without 20 prejudice. Id. at 1120. 21 Although once within the discretion of the district court, exhaustion in prisoner cases 22 covered by § 1997e(a) is now mandatory. Porter v Nussle, 534 U.S. 516, 524 (2002). The 23 exhaustion requirement requires “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 24 (2006). “Proper exhaustion demands compliance with an agency’s deadlines and other critical 25 procedural rules because no adjudicative system can function effectively without imposing some 26 orderly structure on the course of its proceedings.” Id. at 90-91 (footnote omitted). 27 28 Order Granting Defendants’ Motion to Dismiss G:\PRO-SE\SJ.Rmw\CR.11\Sexton360mtdexh.wpd 2 1 At the time of the alleged constitutional violation, the San Francisco County Sheriff’s 2 Department provided inmates in the county jails with a procedure for filing written grievances 3 against staff members. (Decl. Brin at ¶ 3, Ex. A at 6.) If a prisoner is filing a grievance against 4 staff, he shall send it directly to the Facility Commander. (Decl. Brin, Ex. A at 6.) The Facility 5 Commander will log the grievance, and has seven days to respond. (Id.). If the inmate is 6 satisfied with the response, the grievance process ends, but if he is not satisfied, he may appeal 7 the decision to the Custody Division Commander. (Id.) The Custody Division Commander has 8 seven days to respond to the appeal, and the response is sent to the Facility Commander and to 9 the inmate. (Id.) Once the Custody Division Commander has completed his response, the 10 11 inmate has exhausted his administrative remedies (Id. at 5.) Defendants argue that plaintiff has failed to exhaust his claims. Defendants provide 12 evidence that plaintiff submitted a grievance on January 31, 2011, alleging that he was subjected 13 to excessive force by San Francisco deputies. (Decl. Brin at ¶ 5.) There is no other record of an 14 excessive force grievance within the appropriate time period. (Id. at ¶ 6.) Plaintiff’s grievance 15 was given to the Chief of Custody Division Commander, Ellen Brin, with a warning from 16 Captain Miyamoto informing her that plaintiff failed to provide sufficient information in his 17 grievance to allow the captain to determine what plaintiff’s complaint was. (Id. at ¶ 5.) Thus, 18 Chief Brin sent a letter to plaintiff requesting that he provide additional information such that she 19 could investigate his claims. (Id., Ex. C.) Plaintiff never provided such information. (Id. at ¶ 6.) 20 Compliance with prison grievance procedures is all that is required by the PLRA to 21 “properly exhaust.” Jones v. Bock, 549 U.S. 199, 217-18 (2007). The level of detail necessary 22 in a grievance to comply with the grievance procedures will vary from system to system and 23 claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries 24 of proper exhaustion. Id. at 218. Here, the jail grievance form specifically asks the inmate to 25 “please be specific: time, date, etc.” in stating his grievance. (Decl. Brin, Ex. B.) Further, Chief 26 Brin’s letter advise plaintiff that she cannot investigate the grievance without more specific 27 information, such as dates, times, or staff names. (Decl. Brin, Ex. C.) Plaintiff’s grievance did 28 Order Granting Defendants’ Motion to Dismiss G:\PRO-SE\SJ.Rmw\CR.11\Sexton360mtdexh.wpd 3 1 not include enough detail, and even after being given an opportunity to provide such detail, 2 plaintiff did not comply. Thus, defendants have met their burden of proving that administrative 3 remedies existed, but were not followed. See Albino v. Baca, 697 F.3d 1023, 1031-32 (9th Cir. 4 2012). 5 Once defendants meet their burden, the burden shifts to the plaintiff to demonstrate that 6 the grievance procedure was unavailable. See id. at 1032-33. Plaintiff has not provided any 7 evidence to meet his burden. Further, plaintiff has not provided any other evidence of 8 exhaustion to contradict defendants’ submission that plaintiff did not re-submit his grievance 9 after Chief Brin’s letter, or submit any other administrative grievance about the challenged 10 11 12 events. Accordingly, the court concludes that plaintiff has failed to exhaust his administrative remedies, defendants’ motion to dismiss is GRANTED. 13 14 15 16 17 CONCLUSION Defendants’ motion to dismiss is GRANTED. Judgment shall be entered in favor of defendants. The clerk shall terminate all pending motions and close the file. IT IS SO ORDERED. DATED: RONALD M. WHYTE United States District Judge 18 19 20 21 22 23 24 25 26 27 28 Order Granting Defendants’ Motion to Dismiss G:\PRO-SE\SJ.Rmw\CR.11\Sexton360mtdexh.wpd 4 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MARVIN R. SEXTON JR, Case Number: CV11-03460 RMW Plaintiff, CERTIFICATE OF SERVICE v. SF SHERIFF DEPT. et al, Defendant. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 31, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Marvin R Sexton 10686200 307 Oeana Drive Pittsburg, CA 94565 Dated: July 31, 2012 Richard W. Wieking, Clerk By: Jackie Lynn Garcia, Deputy Clerk

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