Fialho v. Herrera et al

Filing 41

ORDER Adopting 32 Report and Recommendation Granting Defendants' Motion to Dismiss 26 . Signed by Judge Gonzalo P. Curiel on 12/2/15. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SCOTT F. FIAHLO,

Case NO. 14cv1378-GPC(MDD)
Plaintiff,

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ORDER ADOPTING MAGISTRATE
JUDGE’S REPORT AND
RECOMMENDATION GRANTING
DEFENDANTS’ MOTION TO
DISMISS

v.
G. HERRERA, et. al.,

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Defendants.

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[ECF Nos. 26, 32]

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Scott F. Fiahlo (“Fiahlo”), a state prisoner proceeding pro se, filed a Complaint

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pursuant to 42 U.S.C. section 1983, alleging constitutional violations for an incident

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occurring on January 25, 2014 at the Calipatria State Prison (“CSP”). (Dkt. No. 1.) On

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March 4, 2015, Defendants Kissol and Anderson (“Kissol” and “Anderson”) moved to

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dismiss the complaint for failure to state a claim. (Dkt. No. 26.) Defendant Herrera joined

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Defendants’ Motion to Dismiss on March 6, 2015. (Dkt. No. 28.) On March 23, 2015,

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Plaintiff filed a response in opposition to Defendants’ motion to dismiss (“Response”).

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(Dkt. No. 29.) Defendants Kissol and Anderson filed a reply on April 4, 2015. (Dkt. No.

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30.) On April 24, 2015, the Magistrate Judge filed a report and recommendation granting

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Defendants’ motion to dismiss the complaint for failure to state a claim. (Dkt. No. 32.)

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After a careful review of the briefing, supporting documentation and the applicable law,
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the Court ADOPTS the report and recommendation and thereby GRANTS Defendants’

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motion to dismiss the complaint for failure to state a claim.

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PROCEDURAL BACKGROUND

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On June 5, 2014, Plaintiff filed a complaint against Defendants Correctional

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Officers Kissol and Anderson, and Registered Nurse (“R.N.”) G. Herrera. (Dkt. No. 1.)

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Fiahlo alleges that Defendants violated his Eighth Amendment constitutional right in

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refusing to provide him adequate medical treatment, which caused him harm and

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suffering due to delay in treatment. (Id. at 3.)

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On March 4, 2015, Defendants Kissol and Anderson filed a motion to dismiss the

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complaint under Federal Rule of Civil Procedure 12(b)(6), because Plaintiff failed to

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exhaust all administrative remedies as required by 42 U.S.C. § 1997e(a). (Dkt. No. 26 at

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6.) Two days later, Defendant Herrera filed a notice of joinder to Defendants Kissol and

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Anderson’s motion to dismiss. (Dkt. No. 28.)

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On March 23, 2015, Plaintiff filed a Response in opposition to Defendants’ motion

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to dismiss the complaint. (Dkt. No. 29.) Defendants Kissol and Anderson filed a reply to

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Plaintiff’s response in opposition to the motion to dismiss on April 4, 2015. (Dkt. No.

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30.)

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On April 24, 2015, the Magistrate Judge filed a report and recommendation
granting Defendants’ motion to dismiss the complaint. (Dkt. No. 32.)

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FACTUAL BACKGROUND

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According to the Complaint, on January 25, 2014 while incarcerated at CSP,

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Fiahlo got a call from his family and received news that his eldest brother had been

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killed. (Dkt. No. 1 at 3.) The news caused Fiahlo to lose track of the copious amounts of

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water he was drinking, and he became “very sick” as a result. (Id.) Fiahlo then began to

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vomit, urinate and defecate on himself in his cell, which caused him to slip and fall on his

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head. (Id.) As a result of the fall, Fiahlo became temporarily paralyzed in his movements

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and voice, but was “still conscious” and able to hear. (Id.)

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Fiahlo overheard Anderson tell him to “get up,” and asked Fiahlo why he was on
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the floor. (Id.) Anderson then left the room and returned shortly after with Herrera, a

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registered nurse. (Id.) Anderson and Herrera “started ‘laughing at [him]’” and “making

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jokes,” stating that Fiahlo was drunk and needed to “sleep it off.” (Id.) Plaintiff

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additionally overheard Kissol, a building control tower officer, tell Anderson and Herrera

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to leave Fiahlo in his cell because he was “just drunk.” (Id.) Kissol also made jokes at

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Fiahlo’s expense. (Id.) As a result, Fiahlo received medical treatment five to seven hours

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later, which lead to a coma lasting two to four days. (Id.)

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On March 7, 2014, Fiahlo submitted an inmate administrative appeal by filing a

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California Department of Corrections and Rehabilitation (“CDCR”) 602 Form, as well as

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an inmate healthcare appeal by filing a CDCR 602 HC Form. (Dkt. No. 1-2 at 52-53, 55.)

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In his administrative appeal, Fiahlo prayed for a “full investigation” and a “detailed

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response of the investigation.” (Id. at 52.) In his healthcare appeal, Plaintiff asked that

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Herrera be fired, her “medical license” revoked, and requested a justification for the

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misconduct. (Id. at 55.)

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A memorandum from the second level appeals staff at CDCR, dated April 8, 2014,

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notified Fiahlo that his appeal was “granted,” in that “[a]n investigation is being

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conducted by the Office of Internal Affairs.” (Id. at 51.) Fiahlo would be notified of the

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results upon conclusion of the investigation. (Id.) In response to Fiahlo’s healthcare

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appeal, the second level appeals staff at CDCR informed Fiahlo in a May 15, 2014

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memorandum that his healthcare appeal was “partially granted,” in that the matter would

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also be referred to the Office of Internal Affairs for “follow-up and a possible

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investigation.” (Id. at 54.) Fiahlo was also informed that he would be notified as to the

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results of the investigation into the allegations stated in his healthcare appeal. (Id.)

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On June 5, 2014, Fiahlo filed the operative Complaint, prior to receiving results of

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the pending investigations. Fiahlo asks that the Court grant him $50,000 or more in

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general and punitive damages, in addition to the firing of the named Defendants from

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employment at CDCR. (Dkt. No. 1 at 7.)

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DISCUSSION
A.

Standard of Review
The district court “shall make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.

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§ 636(b)(1). When the parties do not object, a district court may assume the correctness

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of the magistrate judge’s findings of fact and decide the motion on the applicable law.

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Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142

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F. Supp. 2d 1215, 1217 (S.D. Cal. 2001).

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B.

Legal Standard under Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) permits dismissal for “failure to

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state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal is

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warranted under Rule12(b)(6) where the complaint lacks a cognizable legal theory.

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Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

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Alternatively, a complaint may be dismissed where it presents a cognizable legal theory,

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yet fails to plead essential facts under that theory. Id. While a plaintiff need not give

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“detailed factual allegations,” a plaintiff must plead sufficient facts that, if true, “raise a

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right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 545 (2007).

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“To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). A claim is

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facially plausible when the factual allegations permit “the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Id.

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Allegations in pro se complaints are generally held to less stringent standards than

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complaints drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus,

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courts have an obligation to construe these complaints liberally and to afford the prisoner

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the benefit of any doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en
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banc). However, “a liberal interpretation of a civil rights complaint may not supply

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essential elements of the claim that were not initially pled. Vague and conclusory

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allegations of official participation in civil rights violations are not sufficient to withstand

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a motion to dismiss.” Bruns v. NCUA, 122 F.3d 1251, 1257 (9th Cir. 1997) (citing Ivey

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v. Board of Regents, 673 F.2d 266 (9th Cir. 1982)).

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C.

Legal Standard under the Prison Litigation Reform Act
The Prison Litigation Reform Act (“PLRA”) requires that “[n]o action shall be

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brought with respect to prison conditions under. . . [42 U.S.C. § 1983], or any other

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

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such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see

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also Booth v. Churner, 532 U.S. 731, 736 (2001) (requiring exhaustion even where relief

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sought cannot be granted by administrative process); Morton v. Hall, 599 F.3d 942, 945

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(9th Cir. 2010). “[A] prisoner must complete the administrative review process in

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accordance with the applicable procedural rules . . . as a precondition to bringing suit in

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federal court.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). Prisoners must exhaust their

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administrative remedies prior to filing suit, not during the pendency of the suit. See

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McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring

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dismissal without prejudice where a prisoner “d[oes] not exhaust his administrative

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remedies prior to filing suit but is in the process of doing so when a motion to dismiss is

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filed”).

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Prisoners are required to exhaust prison administrative procedures regardless of

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whether the type of relief they seek matches the type of relief available through

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administrative procedures. See Booth, 532 U.S. at 741; see also Morton, 599 F.3d at 945.

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However, the PLRA requires exhaustion only of those administrative remedies “as are

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available,” and the PLRA does not require exhaustion when circumstances render

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administrative remedies “effectively unavailable.” Nunez v. Duncan, 591 F.3d 1217,

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1223-26 (9th Cir. 2010) (holding that plaintiff’s failure to timely exhaust his

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administrative remedies was excused because he took reasonable steps to exhaust his
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claim and was precluded from exhausting by the warden’s mistake). A prisoner’s

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participation in an internal investigation of official conduct does not constitute

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constructive exhaustion of administrative remedies. See Panaro v. City of N. Las Vegas,

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432 F.3d 949, 953-54 (9th Cir. 2005).

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D.

Analysis

1. Defendants’ Motion to Dismiss

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Defendants urge dismissal of the Complaint because Plaintiff admits in his

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Complaint that he has failed to exhaust all administrative remedies. (Dkt. No. 26 at 6.)

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Defendants refer to Plaintiff’s administrative and healthcare appeals in his Complaint,

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where he concedes that “there has been no conclusion [sic] yet on both 602s, they [CDCR

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officials] are still investigating . . . The CDCR authorities have not given me no [sic]

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indications of how long or estimations [sic] these investigations will take.” (Dkt. No. 1 at

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6.) (internal quotation marks omitted). Defendants argue that within the CDCR staff

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misconduct appeals process, there remains a third level of review that Plaintiff must

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pursue under PLRA § 1997e(a), before he can bring a Complaint on these issues before

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this Court. (Dkt. No. 26 at 5-6.)

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In his response, Plaintiff claims he is “not obligated to pursue the appeal through

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the third level in order to exhaust administrative remedies,” since his appeals have been

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granted or partially granted at the lower level. (Dkt. No. 29 at 1.) Plaintiff therefore

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asserts that his claims are fully exhausted and the Defendants’ motion to dismiss should

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be denied. (Id.) To support this contention, Plaintiff relies on the decision in Brown v.

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Valoff, 422 F.3d 926 (9th Cir. 2004).

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Failure to exhaust is an affirmative defense that defendants must raise and prove.

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See Jones v. Bock, 549 U.S. 199, 212-17 (2007) (explaining that inmates are not required

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to plead specifically or demonstrate exhaustion in their complaints). In the rare case a

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prisoner’s failure to exhaust is clear from the face of the complaint, a “defendant may

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successfully move to dismiss under Rule 12(b)(6) for failure to state a claim.” Albino v.

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Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). Although a motion to dismiss is not the
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appropriate method for deciding disputed factual questions relevant to exhaustion,

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“[e]xhaustion should be decided, if feasible, before reaching the merits of a prisoner's

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claim.” Id. at 1170.

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Since exhaustion is an affirmative defense, Defendants bear the burden of

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demonstrating “that pertinent relief remained available, whether at unexhausted levels of

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the grievance process or through awaiting the results of the relief already granted as a

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result of the process.” Brown, 422 F.3d at 936-37 (citing Wyatt v. Terhune, 315 F.3d

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1108, 1119 (9th Cir. 2003)).

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The Magistrate Judge recommends granting Defendants’ motion to dismiss on the

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ground that Defendants met their burden to show that from the face of the pleadings,

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Plaintiff failed to exhaust his claim of cruel and unusual punishment under the PLRA

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prior to filing this action. (Dkt. No. 32 at 13.) The Magistrate noted that from the face of

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the Complaint, Plaintiff has failed to exhaust administrative remedies, as Plaintiff himself

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admits that second level appeal investigations are still pending. (Id. at 10.) Further, the

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Magistrate Judge found Plaintiff’s reliance on Brown misplaced. (Id. at 9-10.)

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The Court agrees with the Magistrate Judge’s finding of Plaintiff’s reliance on this

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case as misplaced, and further notes that it is directly contrary to his contentions. In

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Brown, the Ninth Circuit considered two cases in which both prisoners filed appeals but

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failed to pursue them up to the third and final level of review after receiving responses at

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the intermediate levels of review. Brown, 422 F.3d at 929. In distinguishing the two cases

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before it, the court established that a prisoner has not exhausted his claim if an

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investigation remains pending, some relief is still available, and CDCR has not informed

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plaintiff that no remedies are available. Id. at 935, 942.

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The Magistrate Judge found that much of the very relief Plaintiff requested is still

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available, albeit not necessarily in the level of detail he requested. (Dkt. No. 32 at 10.)

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We agree. Plaintiff requested a “full investigation” and a “detailed response of the

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investigation” in his administrative appeal, and the firing of Defendant Herrera, a

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revocation of her “medical license,” and a justification for the alleged misconduct in his
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healthcare appeal. (Dkt. No. 1-2 at 52, 55.) However, Plaintiff is still required to exhaust

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prison administrative procedures regardless of whether the relief sought matches the type

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of relief available through administrative procedures. See Booth, 532 U.S. at 739, 741 n.6

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(noting that “an inmate must exhaust irrespective of the forms of relief sought and offered

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through administrative avenues,” id. at 739, “regardless of the fit between a prisoner’s

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prayer for relief and the administrative remedies possible,” id. at 741 n.6). As set forth

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above, Plaintiff was informed that upon completion of an investigation, he would receive

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further relief in the form of notification as to whether the allegations were sustained, not

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sustained, unfounded, exonerated, or there was no finding. (Dkt. No. 1-2 at 54.)

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Moreover, Defendants argue that if the investigation yields the result “not

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sustained,” “unfounded,” “exonerated” or “no finding,” Plaintiff would not achieve

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vindication for his allegations of staff misconduct, or receive an exoneration from the

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allegation of intoxication. (Dkt. No. 29 at 4-5.) Defendants point out that Plaintiff will

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have the chance to appeal these unfavorable results at the third level of appeal. (Id.) This

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demonstrates that some relief, through the exoneration of claims of intoxication and the

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acknowledgement of the legitimacy of his claims of staff misconduct, remains available.

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Plaintiff acknowledges that he has yet to receive the results from the investigation.

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This shows that the very relief sought, an investigation and the results, are still in fact

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available through the CDCR grievance process that Plaintiff prematurely abandoned. In

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addition, Plaintiff has not been informed that no further remedies are available to him. To

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the contrary, the response he received at the second level of appeal specifically advised

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Plaintiff that it is only “[o]nce a decision has been rendered at the Third Level, your

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administrative remedies will be considered exhausted.” (Dkt. No. 1-2 at 51.) Further, in

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his healthcare appeal, Plaintiff was advised that “[a]llegations of staff misconduct do not

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limit or restrict the availability of further relief via the inmate appeals process.” (Id. at

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54.)

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The Court agrees with the Magistrate Judge’s finding that Defendants have met
their burden and shown that, from the face of the pleadings, it is apparent Plaintiff failed
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to exhaust his claim of cruel and unusual punishment under PLRA § 1997e(a) before

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filing the operative Complaint. Accordingly, the Court ADOPTS the report and

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recommendation granting Defendants’ motion to dismiss for failure to state a claim.

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CONCLUSION

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For the foregoing reasons, the Court ADOPTS the Magistrate Judge’s report and

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recommendation and GRANTS Defendants’ motion to dismiss for failure to state a

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claim.

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IT IS SO ORDERED.
Dated: December 2, 2015

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