Grady v. Ronquillo

Filing 12

ORDER granting defendant's 9 motion to dismiss plaintiff's complaint for failure to exhaust his administrative remedies pursuant to FED.R.CIV.P. 12(b)and 42 U.S.C. § 1997e(a). This dismissal is without prejudice. The Clerk of Court shall close the file. Signed by Judge Larry Alan Burns on 11/10/11. (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHARLES GRADY,
CDCR #T-71212,

Civil No.
Plaintiff,

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11cv0783 LAB (JMA)

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS PURSUANT
TO FED.R.CIV.P. 12(b)

vs.
RONQUILLO, Correctional Officer,

[ECF No. 9]

Defendant.

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I.

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P ROCEDURAL B ACKGROUND

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Charles Grady (“Plaintiff”), a prisoner currently incarcerated at Pleasant Valley State

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Prison in Coalinga, California, proceeding pro se and in forma pauperis, filed this civil rights

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action pursuant to 42 U.S.C. § 1983 on April 13, 2011. Plaintiff alleges that while he was

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housed at the Richard J. Donovan Correctional Facility (“Donovan”) in 2010 and 2011 his

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constitutional rights were violated.

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Defendant Ronquillo has filed a Motion to Dismiss pursuant to F ED.R.C IV.P. 12(b) and

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12(b)(6). However, Plaintiff has failed to file an Opposition. The Court has determined that

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Defendant’s Motion is suitable for disposition upon the papers without oral argument and that

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11cv0783 LAB (JMA)

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no Report and Recommendation from Magistrate Judge Jan M. Adler is necessary. See S.D.

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C AL. C IVLR 7.1(d)(1), 72.3(e).

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II.

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F ACTUAL A LLEGATIONS

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In October and November of 2010, Plaintiff, while housed at Donovan, alleges that

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Defendant Ronquillo would destroy inmate administrate grievances. (See Compl. at 3.) As a

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result, Plaintiff was unable to properly resolve his grievances.

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administrative grievance alleging that Defendant Ronquillo was “disrespectful” and Plaintiff

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claims that Ronquillo began to retaliate against him for filing a grievance against her. (Id.)

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Plaintiff further alleges that Ronquillo attempted to have Plaintiff “beat up” another inmate on

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her behalf. (Id.) When Plaintiff refused to start a fight, he alleges Ronquillo informed him that

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even though he did not currently have any enemies, she would “see that I would have some.”

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(Id.) Plaintiff claims he also stopped receiving his halal religious meals as an act of retaliation

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by Ronquillo. (Id.) Plaintiff further alleges Ronquillo purposefully staged events so that fights

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would start among inmates. (Id.)

(Id.)

Plaintiff wrote an

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On one occasion, Plaintiff claims that the cell door of another inmate and Plaintiff’s cell

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were purposefully left open so that they would engage in combat. (Id. at 4.) Inmate Newell is

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alleged to have “charged” at Plaintiff. (Id.) While this was happening, another correctional

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officer “yelled lock-down” but Ronquillo intervened and stated “let it happen, this is going to

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be a good one.” (Id.) As another inmate was hitting Plaintiff, Plaintiff claims he was shot “with

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a block gun” four times. (Id. at 4-5.) Plaintiff claims that Ronquillo was known to set up fights

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among inmates. (Id. at 5.)

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III.

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D EFENDANTS’ M OTION TO D ISMISS PURSUANT TO FED.R.CIV.P. 12(b)

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As a preliminary matter, the Court will first consider Defendant’s arguments that

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Plaintiff’s Complaint should be dismissed for failing to exhaust available administrative

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remedies pursuant to F ED.R.C IV.P. 12(b) and 42 U.S.C. § 1997e(a).

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11cv0783 LAB (JMA)

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A.

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Defendant Ronquillo claims Plaintiff failed to exhaust available administrative remedies

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pursuant to 42 U.S.C. § 1997e(a) before bringing this suit, therefore, Ronquillo seeks dismissal

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under the “non-enumerated” provisions of F ED.R.C IV.P. 12(b). The Ninth Circuit has held that

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“failure to exhaust nonjudicial remedies is a matter of abatement” not going to the merits of the

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case and is properly raised pursuant to a motion to dismiss, including a non-enumerated motion

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under F ED.R.C IV.P. 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) It is also

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well established that non-exhaustion of administrative remedies as set forth in 42 U.S.C.

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§ 1997e(a) is an affirmative defense which defendant prison officials have the burden of raising

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and proving. See Jones v. Bock, 594 U.S. 199, 216 (2007); Wyatt, 315 F.3d at 1119. However,

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unlike under Rule 12(b)(6), “[i]n deciding a motion to dismiss for failure to exhaust nonjudicial

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remedies, the court may look beyond the pleadings and decide disputed issues of fact.” Wyatt,

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F.3d at 1120.

Standard of Review per F ED.R.C IV.P. 12(b) and 42 U.S.C. § 1997e(a)

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B.

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The Prison Litigation Reform Act (“PLRA”) amended 42 U.S.C. § 1997e(a) to provide

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that “[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a

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prisoner confined in any jail, prison or other correctional facility until such administrative

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remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Once within the discretion of

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the district court, exhaustion in cases covered by § 1997e(a) is now mandatory.” Porter v.

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Nussle, 534 U.S. 516, 532 (2002). 42 U.S.C. § 1997e(a) has been construed broadly to “afford

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[ ] corrections officials time and opportunity to address complaints internally before allowing

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the initiation of a federal case, id. at 525-26, and to encompass inmate suits about both general

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circumstances and particular episodes of prison life--including incidents of alleged excessive

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force. Id. at 532. Finally, “[t]he ‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint

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under § 1983 may be entertained,” “regardless of the relief offered through administrative

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procedures.” Booth v. Churner, 532 U.S. 731, 738, 741 (2001); see also McKinney v. Carey,

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311 F.3d 1198, 1200-01 (9th Cir. 2002).

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Exhaustion of Administrative Remedies per 42 U.S.C. § 1997e(a)

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11cv0783 LAB (JMA)

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The State of California provides its prisoners and parolees the right to administratively

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appeal “any departmental policies, decisions, actions, conditions, or omissions that have a

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material adverse effect on the welfare of inmates and parolees.”

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§ 3084.1(a) (2011). Prior to January 28, 2011, in order to exhaust available administrative

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remedies within this system, a prisoner would proceed through several levels: (1) informal

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resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal

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to the institution head or designee, and (4) third level appeal to the Director of the California

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Department of Corrections. C AL. C ODE R EGS., tit. 15 § 3084.1(a) (2010). However, in January

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2011, the process was changed.

C AL. C ODE R EGS., tit. 15

Following January 28, 2011, prison regulations no longer

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required an inmate to submit to informal resolution while the other remaining levels remain the

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same. C AL. C ODE R EGS. tit. 15 § 3084.5 (2011).

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C.

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Defendant Ronquillo argues that Plaintiff failed to exhaust his administrative remedies

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prior to filing this lawsuit. In support of her claim, Defendant provides the declaration of R.

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Cobb, Appeals Coordinator at Donovan. (See Defs. Mot, Cobb Decl. at ¶ 2.) Plaintiff was

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housed at Donovan from March 22, 2010 to April 13, 2011. (Id. at ¶ 8.) In Cobb’s Declaration,

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he states that he reviewed all the administrative appeals submitted by Plaintiff while housed at

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Donovan. (Id. at ¶ 8.)

Application of 42 U.S.C. § 1997e(a) to Plaintiff’s Case

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Plaintiff filed an administrative grievance on March 12, 2011 in which Plaintiff raised

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several grievances against Defendant Ronquillo that were related to the issues in Plaintiff’s

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Complaint. (Id. at ¶ 9(b)). This grievance was classified as a staff complaint. (Id.) However,

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Cobb rejected this grievance on March 16, 2011 for failing to comply with the regulations. (Id.

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citing C ODE R EGS., tit. 15 § 3084.2(a)(2) and 3084.6(b)(5) (2011)). Specifically, Plaintiff’s

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grievance exceeded the page limitation. (Id.) Plaintiff was sent a rejection letter by Cobb

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notifying Plaintiff that he had failed to comply with § 3084.6(b)(5). (Id., Ex. C. Screening at

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First Level dated March 16, 2011). Plaintiff did “not attempt to re-submit the appeal.” (Id.)

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11cv0783 LAB (JMA)

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The Supreme Court has made clear that Plaintiff must “properly exhaust” his

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administrative remedies before filing a prison conditions action. In Woodford v. Ngo, 548 U.S.

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81, 91 (2006), the Supreme Court held that “[p]roper exhaustion demands compliance with an

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agency’s deadlines and other critical procedural rules because no adjudicative system can

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function effectively without imposing some orderly structure on the course of its proceedings.”

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Woodford, 548 U.S. at 91. The Court further held that “[proper exhaustion] means ... a prisoner

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must complete the administrative review process in accordance with the applicable procedural

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rules ... as a precondition to bring suit in federal court.” Id.

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Plaintiff has failed to rebut Defendant Ronquillo’s showing that he failed to properly

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exhaust his administrative grievances prior to bringing this action. Thus, the Court GRANTS

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Defendant’s Motion to Dismiss Plaintiff’s Complaint for failing to exhaust his administrative

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remedies as required by 42 U.S.C. § 1997e(a).

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Plaintiff to file a separate action once he has properly exhausted his administrative remedies.

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The Court will not address the remainder of Defendant’s Motion as dismissal of the entire action

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without prejudice is warranted at this time.

This dismissal is without prejudice to permit

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IV.

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C ONCLUSION AND O RDER

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Based on the foregoing, the Court hereby:

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GRANTS Defendant’s Motion to Dismiss Plaintiff’s Complaint for failure to exhaust his

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administrative remedies pursuant to F ED.R.C IV.P. 12(b) and 42 U.S.C. § 1997e(a). This

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dismissal is without prejudice.

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The Clerk of Court shall close the file.

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IT IS SO ORDERED.

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DATED: November 10, 2011

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HON. LARRY ALAN BURNS
United States District Judge

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11cv0783 LAB (JMA)