Cruz v. Jeffreys et al

Filing 53

ORDER (1) Overruling Plaintiff's Objections; (2) Adopting 50 Report and Recommendation; (3) Granting 47 Motion to Dismiss; and (4) Denying Plaintiff's 49 Motion to Amend. The Court (1) Overrules Plaintiff's Objections, (2) Ado pts Judge Lewis's Report and Recommendation in its entirety and (3) Grants Defendants' Motion to Dismiss. The Court denies Plaintiff's Motion to Amend and dismisses with prejudice Plaintiff's First Amended Complaint. Signed by Judge Janis L. Sammartino on 3/7/2018. (All non-registered users served via U.S. Mail Service)(mpl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, Case No.: 15-CV-2826 JLS (PCL) Plaintiff, 12 13 14 ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS; (2) ADOPTING REPORT AND RECOMMENDATION; (3) GRANTING MOTION TO DISMISS; AND (4) DENYING PLAINTIFF’S MOTION TO AMEND v. JEFFREYS; RIOS; RAMOS, Defendants. 15 16 17 (ECF Nos. 47, 49, 50, 52) 18 19 20 Presently before the Court is Magistrate Judge Peter C. Lewis’s Report and 21 Recommendation, (“R&R,” ECF No. 50), advising that the Court grant Defendants 22 Jeffries, Rios, and Ramos’s Motion to Dismiss, (“MTD,” ECF No. 47). Also before the 23 Court is Plaintiff’s Objections to the R&R, (“R&R Objs.,” ECF No. 52); Defendants did 24 not file a reply in opposition to Plaintiff’s Objections. After considering the parties’ 25 arguments and the law, the Court OVERRULES Plaintiff’s Objections, ADOPTS the 26 R&R in its entirety, and GRANTS Defendants’ Motion to Dismiss. Additionally, Plaintiff 27 filed a motion to amend his complaint, (ECF No. 49), which the Court DENIES. 28 /// 1 15-CV-2826 JLS (PCL) 1 BACKGROUND 2 Judge Lewis’s R&R contains a thorough and accurate recitation of the factual and 3 procedural histories underlying the instant Motion to Dismiss. (See R&R 2–4.)1 This 4 Order incorporates by reference the background as set forth therein. 5 LEGAL STANDARD 6 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 7 court’s duties regarding a magistrate judge’s report and recommendation. The district court 8 “shall make a de novo determination of those portions of the report . . . to which objection 9 is made,” and “may accept, reject, or modify, in whole or in part, the findings or 10 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also 11 United States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely 12 objection, however, “the Court need only satisfy itself that there is no clear error on the 13 face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory 14 committee’s note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)). 15 ANALYSIS 16 I. Summary of the R&R Conclusions 17 On December 15, 2015 Plaintiff filed a Complaint against Defendants, correctional 18 officers at R.J. Donovan Correctional Facility (“RJDCF”) for alleged violations of his civil 19 rights. (“Compl.,” ECF No. 1.) Plaintiff alleges violations of 42 U.S.C. § 1983 and accuses 20 the moving Defendants of violating his First, Eighth, and Fourteenth Amendment rights. 21 Plaintiff alleges that he submitted grievances against Defendants in early July and they 22 retaliated against him by reporting Plaintiff to the Mental Health Services Delivery System 23 and failing to protect him when, on July 13, 2010, he was targeted for assault by other 24 prisoners in retaliation for filing the grievances. (See Compl. 3.) On December 22, 2016, 25 Defendants filed a motion to dismiss arguing that (1) Plaintiff’s allegations were barred by 26 27 28 1 Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each page. 2 15-CV-2826 JLS (PCL) 1 the statute of limitations, and (2) Plaintiff failed to allege facts sufficient to state a claim. 2 (ECF No. 33.) Defendants did not raise an exhaustion of administrative remedies defense. 3 Plaintiff filed a motion to amend his Complaint, which this Court granted and, therefore, 4 denied as moot Defendants’ motion to dismiss. (ECF No. 45.) 5 On July 10, 2017, Plaintiff filed his First Amended Complaint, alleging generally 6 the same facts, but included documentation of his administrative remedies for the purpose 7 of tolling the statute of limitations. (First Am. Compl. (“FAC”), ECF No. 46.) Defendants 8 filed the present Motion to Dismiss arguing that Plaintiff’s claims remain barred by the 9 statute of limitations and argue that Plaintiff did not exhaust his administrative remedies 10 prior to filing his case. (MTD 6–10.) 11 Judge Lewis concluded that it was not clear, from the face of Plaintiff’s FAC, 12 whether Plaintiff claims would be subject to equitable tolling of the statute of limitations. 13 Judge Lewis noted that Plaintiff’s claims would be tolled while he pursued administrate 14 remedies, but exact timing of the tolling was not readily apparent from the FAC. (R&R 7– 15 8.) Thus, Judge Lewis recommends denying Defendants’ motion as to the statute of 16 limitations. (Id. at 8.) 17 Judge Lewis then found Plaintiff had not exhausted his administrative remedies prior 18 to filing his lawsuit. (Id. at 8–9.) Plaintiff included documentation in his FAC that he 19 finally exhausted his administrative remedies on June 6, 2017, after he filed his lawsuit. 20 (Id. at 8 (citing FAC 4).) Because of Plaintiff’s failure to exhaust his remedies prior to 21 filing this lawsuit, Judge Lewis recommends dismissing Plaintiff’s suit without prejudice 22 so that he may refile once his administrative remedies are exhausted. (Id. at 9.) 23 II. Summary of Plaintiff’s Objections 24 Plaintiff objects to Judge Lewis’s finding that Plaintiff failed to exhaust his 25 administrative remedies. (R&R Objs. 2.) He also objects to Judge Lewis’s finding that 26 Plaintiff’s claim was barred by the statute of limitations. (Id.) 27 Plaintiff states that from July 1 to July 9, 2010 he submitted Form “602 grievance 28 complaints” regarding the Defendants’ alleged actions against him. (Id.) He alleges that 3 15-CV-2826 JLS (PCL) 1 the appeal coordinator at RJDCF failed to log the complaint, which he alleges was 2 negligent and was “with holding [sic] of information and tampering with evidence.” (Id.) 3 Plaintiff goes on to state that, after his initial grievance was filed, he was on parole from 4 RJDCF and his original Form 602 was never forwarded to him when he was on parole. 5 (See id. at 2–3.) 6 “regarding the lost or delay of [the] original 602 grievance to track down the original 602 7 complaint.” (Id. at 3.) Plaintiff admits that the office of appeals coordinator screened out 8 his appeal as untimely on June 29, 2016, which was finally exhausted on June 6, 2017. 9 III. Court’s Analysis The Court will review, de novo, each part of Judge Lewis’s R&R to which Plaintiff 10 11 He claims that he then filed additional administrative grievances objects. 12 First, Plaintiff objects to the fact that Judge Lewis found that his claim was barred 13 by the statute of limitations. Judge Lewis came to the opposite conclusion: he could not 14 ascertain whether Plaintiff’s claim was subject to tolling and recommends the Court deny 15 Defendants’ motion on statute of limitation grounds. The Court agrees with Judge Lewis’s 16 conclusion. 17 DENIES IN PART Defendants’ Motion to Dismiss as to statute of limitations. Accordingly, the Court OVERRULES Plaintiff’s first Objection and 18 Second, Plaintiff objects to Judge Lewis’s finding that Plaintiff failed to exhaust his 19 administrative remedies before filing his lawsuit. (Id. at 2.) The Court briefly reviews 20 Plaintiff’s FAC and its exhibits. Plaintiff pursued two administrative appeals while in 21 prison. The first appeal, labeled Log No. RJD-X-16-2243 (the “2243 Appeal”), concerned 22 the July 20102 events that Plaintiff alleges violated his constitutional rights. (FAC 16.) 23 Plaintiff alleges he initially filed the 2243 Appeal in the aftermath of the incidents. (Id. at 24 4.) On May 1, 2016, Plaintiff resubmitted the 2243 Appeal, claiming that the original July 25 2010 grievance was either lost or destroyed. (Id. at 15.) On June 7, 2016, the RJDCF 26 27 28 2 The appeal log Plaintiff submitted with his FAC state that the incident occurred in July 2011, not July 2010. (FAC 16.) This discrepancy does not affect the Court’s analysis of Plaintiff’s administrative exhaustion. 4 15-CV-2826 JLS (PCL) 1 appeals coordinator cancelled the 2243 Appeal because it was outside the time limits for 2 submitting an administrative appeal. (Id. at 18 (citing Cal. Code Reg. § 3084.6(c)(4)).) On 3 June 29, 2016, Plaintiff initiated a second administrative action, labeled as Log No. RJD- 4 X-16-31583 (the “3158 Appeal”), to appeal the cancellation of the 2243 Appeal. (Id. at 9.) 5 On March 8, 2017, the RJDCF appeals coordinator denied the 3158 Appeal at the second 6 level. (Id. at 15.) On June 6, 2017, RJDCF office of appeals denied the 3158 Appeal at 7 the third level. (Id. at 7.) 8 The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust all 9 available administrative remedies before filing a § 1983 action in federal court. See 42 10 U.S.C. § 1997e(a). “The obligation to exhaust ‘available’ remedies persists as long as some 11 remedy remains ‘available.’ Once that is no longer the case, then there are no ‘remedies ... 12 available,’ and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 13 F.3d 926, 935 (9th Cir.2005) (quoting Booth v. Churner, 532 U.S. 731, 739–41 (2001)). 14 The Ninth Circuit has held that “defendants have the burden of raising and proving 15 the absence of exhaustion.” Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) 16 overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.) (en banc), 17 cert. denied sub nom., Scott v. Albino, 135 S. Ct. 403 (2014). This burden requires 18 defendants to demonstrate that the inmate has failed to pursue some avenue of “available” 19 administrative relief. Brown, 422 F.3d at 936–37. Because “failure to exhaust is an 20 affirmative defense under the PLRA, and . . . inmates are not required to specially plead or 21 demonstrate exhaustion in their complaints,” the defendant in a typical PLRA case will 22 have to present probative evidence that the prisoner has failed to exhaust available 23 administrative remedies under § 1997e(a). If in the rare case a prisoner’s failure to exhaust 24 is clear from the face of the complaint, a “defendant may successfully move to dismiss 25 under Rule 12(b)(6) for failure to state a claim.” Albino, 747 F.3d at 1169. However, in 26 27 28 3 Plaintiff filed this second appeal from Kern Valley State Prison and therefore the second appeal has a second log number, KVSP-O-16-02114. (FAC 9.) The documents reference both log numbers, but the Court will refer to the second appeal as the 3158 Appeal. 5 15-CV-2826 JLS (PCL) 1 the vast majority of cases, a motion for summary judgment under Rule 56 is the appropriate 2 avenue for deciding exhaustion issues. Id. Although “disputed factual questions relevant 3 to exhaustion should be decided at the very beginning of the litigation,” the plaintiff should 4 be afforded the post-answer discovery process when appropriate after a defendant has pled 5 the affirmative defense of failure to exhaust administrative remedies. 6 Although a motion to dismiss is not the appropriate method for deciding disputed factual 7 questions relevant to exhaustion, “[e]xhaustion should be decided, if feasible, before 8 reaching the merits of a prisoner’s claim. If discovery is appropriate, the district court may 9 in its discretion limit discovery to evidence concerning exhaustion, leaving until later—if 10 it becomes necessary—discovery directed to the merits of the suit.” Id. at 1170 (citing 11 Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008)). Id. at 1171. 12 Here, Plaintiff concedes, on the face of his FAC, that he had not exhausted his 13 administrative remedies until June 6, 2017—almost a year and half after he filed his federal 14 court litigation. See Albino, 747 F.3d at 1169; Wyatt, 315 F.3d at 1120 (“A prisoner’s 15 concession to nonexhaustion is a valid ground for dismissal . . . .”), overruled on other 16 grounds by Albino, 747 F.3d at 1166. The “exhaustion requirement does not allow a 17 prisoner to file a complaint addressing non-exhausted claims.” Rhodes v. Robinson, 621 18 F.3d 1002, 1004 (9th Cir. 2010) (citing McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 19 2002)). From the documentation attached to his FAC, both Plaintiff’s 2243 Appeal 20 (cancelled June 7, 2016) and his 3158 Appeal (exhausted June 6, 2017) were adjudicated 21 after Plaintiff filed his Complaint on December 15, 2015. While exhaustion determinations 22 are typically appropriate for the summary judgment stage, the exhibits attached to the FAC 23 allow the Court to determine that Plaintiff had not exhausted his administrative remedies 24 prior to filing the present lawsuit. Moreover, Plaintiff conceded in his Objections to Judge 25 Lewis’s R&R that his administrative remedies were not complete until June 6, 2017. (R&R 26 Obj. 3.) Thus, the PLRA barred Plaintiff from filing suit, unless an exception applies. 27 The PLRA “does not require exhaustion when circumstances render administrative 28 remedies ‘effectively unavailable.’” Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 6 15-CV-2826 JLS (PCL) 1 2017) (quoting Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)). The Supreme 2 Court has articulated three circumstances where an administrative remedy is effectively 3 unavailable despite being officially available: (1) when the administrative procedure 4 “operates as a simple dead end” because officers are “unable or consistently unwilling to 5 provide any relief to aggrieved inmates”; (2) when the administrative scheme is “so opaque 6 that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can 7 discern or navigate it”; and (3) when prison administrators “thwart inmates from taking 8 advantage of a grievance process through machination, misrepresentation, or intimidation.” 9 Id. (quoting Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016)). 10 Plaintiff has not explicitly argued his administrative remedies remained effectively 11 unavailable. However, construing his filings liberally, the Court examines whether his 12 “lost” 602 grievance, allegedly filed in 2010, could be construed as making his 13 administrative remedies effectively unavailable. Plaintiff claims he filed his initial Form 14 602 grievance within the applicable time limits, see Cal. Code Reg. § 3084.8, and he “never 15 received a response on the original 602 grievance complaint.” (FAC 4.) 16 However, by his own actions, Plaintiff demonstrates that his administrative remedies 17 were available to him. Plaintiff filed two separate administrative appeals—one was 18 cancelled for failing to adhere to the applicable time limits and the second was fully 19 exhausted (after filing this litigation). Moreover, the first appeal was an attempt to locate 20 the lost grievance. It appears that, once he restarted the appeals process in 2016, Plaintiff 21 took reasonable and appropriate steps to exhaust his administrative claims. Yet, those steps 22 demonstrate that the administrative remedy process was available to him and that he 23 utilized that process not once but twice. Thus, Plaintiff filed his federal litigation before 24 exhausting all his administrative remedies. Because Defendants have raised the exhaustion 25 affirmative defense and Plaintiff has not demonstrated that his administrative remedies 26 were effectively unavailable, the PLRA’s command is mandatory: Plaintiff could not and 27 cannot file his action until his administrative remedies are exhausted. 28 7 15-CV-2826 JLS (PCL) 1 2 Accordingly, the Court ADOPTS Judge Lewis’s R&R in its entirety and GRANTS Defendants’ Motion to Dismiss, (ECF No. 47). 3 CONCLUSION 4 For the reasons stated above, the Court (1) OVERRULES Plaintiff’s Objections, 5 (2) ADOPTS Judge Lewis’s R&R in its entirety, (ECF No. 50), and (3) GRANTS 6 Defendants’ Motion to Dismiss, (ECF No. 47). Plaintiff has also filed what appears to be 7 a motion for leave to amend his complaint, (ECF No. 49). Because Plaintiff had not 8 exhausted his remedies prior to filing this case, further amendment would be futile. The 9 Court will dismiss Plaintiff’s claim with prejudice so that he may exhaust any remaining 10 administrative remedies and seek redress accordingly. Thus, the Court DENIES Plaintiff’s 11 Motion to Amend, (ECF No. 49), DISMISSES WITH PREJUDICE Plaintiff’s First 12 Amended Complaint. This Order concludes litigation in this matter. The Clerk SHALL 13 close the file. 14 15 IT IS SO ORDERED. Dated: March 7, 2018 16 17 18 19 20 21 22 23 24 25 26 27 28 8 15-CV-2826 JLS (PCL)

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