Cruz v. Jeffreys et al

Filing 55

AMENDED 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 ) Adopts 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 without 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 AMENDED 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 18 (ECF Nos. 47, 49, 50, 52) 19 20 Presently before the Court1 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 27 28 1 The Court issues this Amended Order correcting its Order issued on March 7, 2018, (ECF No. 53). The only changes to the order can be found in the Conclusion section on page eight. 1 15-CV-2826 JLS (PCL) 1 R&R in its entirety, and GRANTS Defendants’ Motion to Dismiss. Additionally, Plaintiff 2 filed a motion to amend his complaint, (ECF No. 49), which the Court DENIES. 3 /// 4 BACKGROUND 5 Judge Lewis’s R&R contains a thorough and accurate recitation of the factual and 6 procedural histories underlying the instant Motion to Dismiss. (See R&R 2–4.)2 This 7 Order incorporates by reference the background as set forth therein. 8 LEGAL STANDARD 9 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 10 court’s duties regarding a magistrate judge’s report and recommendation. The district court 11 “shall make a de novo determination of those portions of the report . . . to which objection 12 is made,” and “may accept, reject, or modify, in whole or in part, the findings or 13 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also 14 United States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely 15 objection, however, “the Court need only satisfy itself that there is no clear error on the 16 face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory 17 committee’s note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)). 18 ANALYSIS 19 I. Summary of the R&R Conclusions 20 On December 15, 2015 Plaintiff filed a Complaint against Defendants, correctional 21 officers at R.J. Donovan Correctional Facility (“RJDCF”) for alleged violations of his civil 22 rights. (“Compl.,” ECF No. 1.) Plaintiff alleges violations of 42 U.S.C. § 1983 and accuses 23 the moving Defendants of violating his First, Eighth, and Fourteenth Amendment rights. 24 Plaintiff alleges that he submitted grievances against Defendants in early July and they 25 retaliated against him by reporting Plaintiff to the Mental Health Services Delivery System 26 27 28 2 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 and failing to protect him when, on July 13, 2010, he was targeted for assault by other 2 prisoners in retaliation for filing the grievances. (See Compl. 3.) On December 22, 2016, 3 Defendants filed a motion to dismiss arguing that (1) Plaintiff’s allegations were barred by 4 the statute of limitations, and (2) Plaintiff failed to allege facts sufficient to state a claim. 5 (ECF No. 33.) Defendants did not raise an exhaustion of administrative remedies defense. 6 Plaintiff filed a motion to amend his Complaint, which this Court granted and, therefore, 7 denied as moot Defendants’ motion to dismiss. (ECF No. 45.) 8 On July 10, 2017, Plaintiff filed his First Amended Complaint, alleging generally 9 the same facts, but included documentation of his administrative remedies for the purpose 10 of tolling the statute of limitations. (First Am. Compl. (“FAC”), ECF No. 46.) Defendants 11 filed the present Motion to Dismiss arguing that Plaintiff’s claims remain barred by the 12 statute of limitations and argue that Plaintiff did not exhaust his administrative remedies 13 prior to filing his case. (MTD 6–10.) 14 Judge Lewis concluded that it was not clear, from the face of Plaintiff’s FAC, 15 whether Plaintiff claims would be subject to equitable tolling of the statute of limitations. 16 Judge Lewis noted that Plaintiff’s claims would be tolled while he pursued administrate 17 remedies, but exact timing of the tolling was not readily apparent from the FAC. (R&R 7– 18 8.) Thus, Judge Lewis recommends denying Defendants’ motion as to the statute of 19 limitations. (Id. at 8.) 20 Judge Lewis then found Plaintiff had not exhausted his administrative remedies prior 21 to filing his lawsuit. (Id. at 8–9.) Plaintiff included documentation in his FAC that he 22 finally exhausted his administrative remedies on June 6, 2017, after he filed his lawsuit. 23 (Id. at 8 (citing FAC 4).) Because of Plaintiff’s failure to exhaust his remedies prior to 24 filing this lawsuit, Judge Lewis recommends dismissing Plaintiff’s suit without prejudice 25 so that he may refile once his administrative remedies are exhausted. (Id. at 9.) 26 II. Summary of Plaintiff’s Objections 27 28 3 15-CV-2826 JLS (PCL) 1 Plaintiff objects to Judge Lewis’s finding that Plaintiff failed to exhaust his 2 administrative remedies. (R&R Objs. 2.) He also objects to Judge Lewis’s finding that 3 Plaintiff’s claim was barred by the statute of limitations. (Id.) 4 Plaintiff states that from July 1 to July 9, 2010 he submitted Form “602 grievance 5 complaints” regarding the Defendants’ alleged actions against him. (Id.) He alleges that 6 the appeal coordinator at RJDCF failed to log the complaint, which he alleges was 7 negligent and was “with holding [sic] of information and tampering with evidence.” (Id.) 8 Plaintiff goes on to state that, after his initial grievance was filed, he was on parole from 9 RJDCF and his original Form 602 was never forwarded to him when he was on parole. 10 (See id. at 2–3.) 11 “regarding the lost or delay of [the] original 602 grievance to track down the original 602 12 complaint.” (Id. at 3.) Plaintiff admits that the office of appeals coordinator screened out 13 his appeal as untimely on June 29, 2016, which was finally exhausted on June 6, 2017. 14 III. 15 16 He claims that he then filed additional administrative grievances Court’s Analysis The Court will review, de novo, each part of Judge Lewis’s R&R to which Plaintiff objects. 17 First, Plaintiff objects to the fact that Judge Lewis found that his claim was barred 18 by the statute of limitations. Judge Lewis came to the opposite conclusion: he could not 19 ascertain whether Plaintiff’s claim was subject to tolling and recommends the Court deny 20 Defendants’ motion on statute of limitation grounds. The Court agrees with Judge Lewis’s 21 conclusion. 22 DENIES IN PART Defendants’ Motion to Dismiss as to statute of limitations. Accordingly, the Court OVERRULES Plaintiff’s first Objection and 23 Second, Plaintiff objects to Judge Lewis’s finding that Plaintiff failed to exhaust his 24 administrative remedies before filing his lawsuit. (Id. at 2.) The Court briefly reviews 25 Plaintiff’s FAC and its exhibits. Plaintiff pursued two administrative appeals while in 26 prison. The first appeal, labeled Log No. RJD-X-16-2243 (the “2243 Appeal”), concerned 27 28 4 15-CV-2826 JLS (PCL) 1 the July 20103 events that Plaintiff alleges violated his constitutional rights. (FAC 16.) 2 Plaintiff alleges he initially filed the 2243 Appeal in the aftermath of the incidents. (Id. at 3 4.) On May 1, 2016, Plaintiff resubmitted the 2243 Appeal, claiming that the original July 4 2010 grievance was either lost or destroyed. (Id. at 15.) On June 7, 2016, the RJDCF 5 appeals coordinator cancelled the 2243 Appeal because it was outside the time limits for 6 submitting an administrative appeal. (Id. at 18 (citing Cal. Code Reg. § 3084.6(c)(4)).) On 7 June 29, 2016, Plaintiff initiated a second administrative action, labeled as Log No. RJD- 8 X-16-31584 (the “3158 Appeal”), to appeal the cancellation of the 2243 Appeal. (Id. at 9.) 9 On March 8, 2017, the RJDCF appeals coordinator denied the 3158 Appeal at the second 10 level. (Id. at 15.) On June 6, 2017, RJDCF office of appeals denied the 3158 Appeal at 11 the third level. (Id. at 7.) 12 The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust all 13 available administrative remedies before filing a § 1983 action in federal court. See 42 14 U.S.C. § 1997e(a). “The obligation to exhaust ‘available’ remedies persists as long as some 15 remedy remains ‘available.’ Once that is no longer the case, then there are no ‘remedies ... 16 available,’ and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 17 F.3d 926, 935 (9th Cir.2005) (quoting Booth v. Churner, 532 U.S. 731, 739–41 (2001)). 18 The Ninth Circuit has held that “defendants have the burden of raising and proving 19 the absence of exhaustion.” Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) 20 overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.) (en banc), 21 cert. denied sub nom., Scott v. Albino, 135 S. Ct. 403 (2014). This burden requires 22 defendants to demonstrate that the inmate has failed to pursue some avenue of “available” 23 administrative relief. Brown, 422 F.3d at 936–37. Because “failure to exhaust is an 24 25 26 27 28 3 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 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 affirmative defense under the PLRA, and . . . inmates are not required to specially plead or 2 demonstrate exhaustion in their complaints,” the defendant in a typical PLRA case will 3 have to present probative evidence that the prisoner has failed to exhaust available 4 administrative remedies under § 1997e(a). If in the rare case a prisoner’s failure to exhaust 5 is clear from the face of the complaint, a “defendant may successfully move to dismiss 6 under Rule 12(b)(6) for failure to state a claim.” Albino, 747 F.3d at 1169. However, in 7 the vast majority of cases, a motion for summary judgment under Rule 56 is the appropriate 8 avenue for deciding exhaustion issues. Id. Although “disputed factual questions relevant 9 to exhaustion should be decided at the very beginning of the litigation,” the plaintiff should 10 be afforded the post-answer discovery process when appropriate after a defendant has pled 11 the affirmative defense of failure to exhaust administrative remedies. 12 Although a motion to dismiss is not the appropriate method for deciding disputed factual 13 questions relevant to exhaustion, “[e]xhaustion should be decided, if feasible, before 14 reaching the merits of a prisoner’s claim. If discovery is appropriate, the district court may 15 in its discretion limit discovery to evidence concerning exhaustion, leaving until later—if 16 it becomes necessary—discovery directed to the merits of the suit.” Id. at 1170 (citing 17 Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008)). Id. at 1171. 18 Here, Plaintiff concedes, on the face of his FAC, that he had not exhausted his 19 administrative remedies until June 6, 2017—almost a year and half after he filed his federal 20 court litigation. See Albino, 747 F.3d at 1169; Wyatt, 315 F.3d at 1120 (“A prisoner’s 21 concession to nonexhaustion is a valid ground for dismissal . . . .”), overruled on other 22 grounds by Albino, 747 F.3d at 1166. The “exhaustion requirement does not allow a 23 prisoner to file a complaint addressing non-exhausted claims.” Rhodes v. Robinson, 621 24 F.3d 1002, 1004 (9th Cir. 2010) (citing McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 25 2002)). From the documentation attached to his FAC, both Plaintiff’s 2243 Appeal 26 (cancelled June 7, 2016) and his 3158 Appeal (exhausted June 6, 2017) were adjudicated 27 after Plaintiff filed his Complaint on December 15, 2015. While exhaustion determinations 28 are typically appropriate for the summary judgment stage, the exhibits attached to the FAC 6 15-CV-2826 JLS (PCL) 1 allow the Court to determine that Plaintiff had not exhausted his administrative remedies 2 prior to filing the present lawsuit. Moreover, Plaintiff conceded in his Objections to Judge 3 Lewis’s R&R that his administrative remedies were not complete until June 6, 2017. (R&R 4 Obj. 3.) Thus, the PLRA barred Plaintiff from filing suit, unless an exception applies. 5 The PLRA “does not require exhaustion when circumstances render administrative 6 remedies ‘effectively unavailable.’” Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 7 2017) (quoting Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)). The Supreme 8 Court has articulated three circumstances where an administrative remedy is effectively 9 unavailable despite being officially available: (1) when the administrative procedure 10 “operates as a simple dead end” because officers are “unable or consistently unwilling to 11 provide any relief to aggrieved inmates”; (2) when the administrative scheme is “so opaque 12 that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can 13 discern or navigate it”; and (3) when prison administrators “thwart inmates from taking 14 advantage of a grievance process through machination, misrepresentation, or intimidation.” 15 Id. (quoting Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016)). 16 Plaintiff has not explicitly argued his administrative remedies remained effectively 17 unavailable. However, construing his filings liberally, the Court examines whether his 18 “lost” 602 grievance, allegedly filed in 2010, could be construed as making his 19 administrative remedies effectively unavailable. Plaintiff claims he filed his initial Form 20 602 grievance within the applicable time limits, see Cal. Code Reg. § 3084.8, and he “never 21 received a response on the original 602 grievance complaint.” (FAC 4.) 22 However, by his own actions, Plaintiff demonstrates that his administrative remedies 23 were available to him. Plaintiff filed two separate administrative appeals—one was 24 cancelled for failing to adhere to the applicable time limits and the second was fully 25 exhausted (after filing this litigation). Moreover, the first appeal was an attempt to locate 26 the lost grievance. It appears that, once he restarted the appeals process in 2016, Plaintiff 27 took reasonable and appropriate steps to exhaust his administrative claims. Yet, those steps 28 demonstrate that the administrative remedy process was available to him and that he 7 15-CV-2826 JLS (PCL) 1 utilized that process not once but twice. Thus, Plaintiff filed his federal litigation before 2 exhausting all his administrative remedies. Because Defendants have raised the exhaustion 3 affirmative defense and Plaintiff has not demonstrated that his administrative remedies 4 were effectively unavailable, the PLRA’s command is mandatory: Plaintiff could not and 5 cannot file his action until his administrative remedies are exhausted. 6 7 Accordingly, the Court ADOPTS Judge Lewis’s R&R in its entirety and GRANTS Defendants’ Motion to Dismiss, (ECF No. 47). 8 CONCLUSION 9 For the reasons stated above, the Court (1) OVERRULES Plaintiff’s Objections, 10 (2) ADOPTS Judge Lewis’s R&R in its entirety, (ECF No. 50), and (3) GRANTS 11 Defendants’ Motion to Dismiss, (ECF No. 47). Plaintiff has also filed what appears to be 12 a motion for leave to amend his complaint, (ECF No. 49). Because Plaintiff had not 13 exhausted his remedies prior to filing this case, further amendment would be futile. The 14 Court will dismiss Plaintiff’s claim without prejudice so that he may exhaust any remaining 15 administrative remedies and seek redress in the future accordingly. If Plaintiff wishes to 16 pursue further federal litigation, he will need to file a new complaint after he exhausts all 17 remedies. 18 DISMISSES WITHOUT PREJUDICE Plaintiff’s First Amended Complaint. This 19 Order concludes litigation in this matter. The Clerk SHALL close the file. 20 21 Thus, the Court DENIES Plaintiff’s Motion to Amend, (ECF No. 49), IT IS SO ORDERED. Dated: March 7, 2018 22 23 24 25 26 27 28 8 15-CV-2826 JLS (PCL)

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