Tia v. Paderes et al
Filing
156
ORDER GRANTING MOTION TO DISMISS FOR FAILURE TO EXHAUST 146 . ~ "Plaintiff's Complaint and action are DISMISSED without prejudice." "The court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Pro cedure 24(a)(3)(A), that an appeal of this decision would not be taken in good faith." ~ Signed by JUDGE LESLIE E. KOBAYASHI on 12/13/2012. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electron ic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on December 14, 2012.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PETER R. TIA, #A1013142,
Plaintiff,
vs.
DR. PADERES, et al.,
Defendants.
____________________________
)
)
)
)
)
)
)
)
)
)
)
NO. 1:11-cv-00459 LEK/KSC
ORDER GRANTING MOTION TO
DISMISS FOR FAILURE TO EXHAUST
ORDER GRANTING MOTION TO DISMISS FOR FAILURE TO EXHAUST
Plaintiff Peter R. Tia is a prisoner confined at the
Halawa Correctional Facility (“HCF”).
Before the court is
Defendants’ Dr. Paderes, Dr. Rosen, Mary Tumminello, Linda
Rivera, and HCF’s “Motion to Dismiss Complaint Filed on July 25,
2011, for Failure to Exhaust Administrative Remedies.”
ECF #146.
Plaintiff filed an Opposition to the Motion on October 31, 2012.1
ECF #149.
Defendants have filed a Reply.
ECF #153.
The court elects to decide this matter without a
hearing pursuant to the Local Rules for the District of Hawaii,
LR7.2(d) and Rule 78(b) of the Federal Rules of Civil Procedure.
Because Plaintiff failed to fully and properly exhaust his
administrative remedies before commencing this action,
1
On November 13, 2012, the court sent Plaintiff a second
Notice explaining what he must do to successfully oppose a motion
to dismiss for failure to exhaust, and extended the time for
submission of his Opposition. See Notice, ECF #151; see also
Woods v. Carey, 684 F.3d 934,936 (9th Cir. 2012). Plaintiff did
not file a second memorandum in opposition, however.
Defendants’ Motion is GRANTED pursuant to 42 U.S.C. § 1997e(a).
I.
BACKGROUND
Plaintiff claims that Dr. Paderes prescribed him an
enhanced-calorie special diet on September 1, 2010, that allowed
him double portions for dinner and snacks.
Tumminello, a prison
nurse, allegedly countermanded this diet two weeks later, when
she concluded that Plaintiff was overweight.
Plaintiff states
that, on February 15, 2011, the enhanced-calorie diet was
reinstated, but the Department of Public Safety’s (“DPS”) Medical
Director, Dr. Rosen, rescinded it again on April 7, 2011.
Plaintiff complains that he has lost one hundred pounds since his
incarceration at HCF in July 2008, and alleges that prison
officials denied him an enhanced-calorie diet in furtherance of a
racially motivated conspiracy against him.
#4.
Compl., ECF #1 PageID
Plaintiff claims that the prison’s policy denying enhanced-
calorie diets discriminates against indigent inmates like him who
cannot afford to purchase extra food to supplement the prison’s
diet.
II.
42 U.S.C § 1997(e)
“The [PLRA] requires that a prisoner exhaust available
administrative remedies before bringing a federal action
concerning prison conditions.”
Griffin v. Arpaio, 557 F.3d 1117,
1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997e(a)); Brown v.
Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (quoting Porter v.
2
Nussle, 534 U.S. 516, 525 n.4 (2002)).
“‘[T]he PLRA’s exhaustion
requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other
wrong.’”
Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002)
(quoting Porter, 534 U.S. at 532).
Exhaustion is mandatory, and
“unexhausted claims cannot be brought in court.”
Jones v. Bock,
549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199
(9th Cir. 2002) (per curiam).
Even if the prisoner seeks
monetary or other relief that is unavailable through the
grievance system in question, the prisoner must still first
exhaust all available administrative remedies.
See Booth v.
Churner, 532 U.S. 731, 741 (2001) (“[W]e think that Congress has
mandated exhaustion clearly enough, regardless of the relief
offered through administrative procedures.”).
Section 1997e(a) does not impose a pleading
requirement, but rather, provides an affirmative defense under
which defendants have the burden of raising and proving the
absence of exhaustion.
Jones, 549 U.S. at 216; Wyatt v. Terhune,
315 F.3d 1108, 1119 (9th Cir. 2003).
The failure to exhaust
prison administrative remedies is subject to an unenumerated Rule
12(b) motion, rather than a summary judgment motion.
Wyatt, 315
F.3d at 1119 (citing Ritza v. Int’l Longshoremen’s &
Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per
3
curiam)).
In deciding a motion to dismiss for failure to exhaust
administrative remedies, the court may look beyond the pleadings
and decide disputed issues of fact.
III.
Wyatt, 315 F.3d at 1119-20.
DISCUSSION
Defendants argue that Plaintiff failed to properly
exhaust his prison administrative remedies in compliance with the
Hawaii Department of Public Safety’s (“DPS”) Policy and Procedure
Manual (“PPM”) which governs inmate grievances and “define[s] the
boundaries of proper exhaustion.”
See Jones, 549 U.S. at 218.
Defendants state that Plaintiff failed to timely or fully grieve
his claims in compliance with PPM procedures before he filed suit
on July 25, 2011.
Defs.’ Mem. in Support, ECF #146-1.
Plaintiff filed two documents with grievances attached
as exhibits since Defendants filed this Motion.
#149.
See ECF #148,
Although these documents provide no explicit or coherent
argument against the points raised in the Motion, it is clear
that Plaintiff argues that he exhausted his claims, and the court
has considered both of these documents and their exhibits in
deciding Defendants’ Motion.
A.
Failure to Exhaust
The PLRA requires “proper” exhaustion of administrative
remedies.
Woodford v. Ngo, 548 U.S. 81, 93 (2006).
“Proper
exhaustion demands compliance with an agency’s deadlines and
other critical procedural rules.”
4
Id. at 90.
This is “because
no adjudicative system can function effectively without imposing
some orderly structure on the course of its proceedings.”
90-91.
Id. at
Requiring prisoners to properly exhaust their claims
furthers the PLRA’s goal of efficiency by “‘reduc[ing] the
quantity and improv[ing] the quality of prisoner suits.’”
94 (quoting Porter, 534 U.S. at 524).
Id. at
Requiring proper
exhaustion advances this goal by: (1) “giv[ing] prisoners an
effective incentive to make full use of the prison grievance
process;” (2) reducing prisoner suits, as some prisoners are
“persuaded by the proceedings not to file an action in federal
court;” and (3) improving the quality of any remaining prisoner
suits “because proper exhaustion often results in the creation of
an administrative record that is helpful to the court.”
Ngo, 548
U.S. at 94-95.
1.
Hawaii’s Administrative Exhaustion Procedure
Plaintiff has been confined at HCF since 2008.
Because
the DPS’s PPM has been revised twice since then, Plaintiff’s
grievances were reviewed under three different versions of the
PPM.
See Defs.’ Exs. A-C, ECF #146-3 -#146-5 (PPM No. 493.12.03
(eff. Apr. 3, 1992); PPM COR.12.03 (eff. Aug. 3, 2010); PPM
COR.12.03 (eff. Jun. 8, 2011)).
All three versions of the PPM
require an informal attempt at resolving a grievance first, and
then establish a three-step process for exhausting an
administrative appeal -- the inmate must submit a grievance at
5
each step and wait for a response or for the time to receive a
response to expire before moving to the next step.
See id.
Thereafter, the procedures in each version of the PPM
are substantially similar, although the two newer versions allow
the inmate a chance to correct his or her grievance’s procedural
problems before outright rejection of the underlying issue.
Defs.’ Exs. B-C, ECF #146-4 & 146-5.
See
All three versions of the
PPM require the inmate to: (1) submit a grievance within fourteen
days of the date on which the complained-of action occurred; (2)
submit only one issue per grievance; and (3) acknowledge receipt
of a written response before proceeding to the next step.
Failure to comply terminates the grievance process for that
particular issue.
See id., Exs. A-C, ECF #146-3, #146-4, #146-5.
Under the two newer PPM revisions, if an inmate fails
to follow proper procedures, the prison’s grievance officials may
reject and return the grievance or appeal to the inmate without a
response.
See id., ECF #146-4 (PPM COR.12.03 §9.1); ECF #146-5
(PPM COR.12.03 § 9.1).
If a grievance is rejected, the grievance
official must provide the inmate with written notice of the
procedural rejection and an opportunity to correct and resubmit
the grievance or appeal.
Id.
If the official fails to do so,
the inmate may appeal that failure.
If, however, the grievance
or appeal is ultimately rejected for the inmate’s failure to
comply with the DPS’s PPM, after the opportunity to correct the
6
issue has been given, the inmate may not appeal that rejection.
Id.
2.
Analysis
An inmate must complete the grievance process before
filing suit, and exhaustion during the pendency of the litigation
cannot save an action from dismissal.
1200; Griffin, 557 F.3d at 1119.
on July 25, 2011.
See McKinney, 311 F.3d at
Plaintiff filed his Complaint
The court has carefully reviewed each of
Plaintiff’s grievances submitted by the parties.
Plaintiff
attached six grievances to his October 18, 2012 document,
ostensibly showing that he grieved the claims he raises herein.
See Pl.’s “Notice of Appearances,” ECF #148.
These grievances
are all dated after Plaintiff initiated this action, thus, they
are untimely and do not prove that he exhausted his claims before
commencing suit.
Plaintiff submitted another thirty-three grievances in
his October 31, 2012 Opposition to Defendants’ Motion.
#149.
See ECF
Only seven of these grievances are dated before Plaintiff
commenced this action and none relate to Plaintiff’s claims that
Defendants denied him adequate food and nutrition with deliberate
indifference to his health and safety.
2
See ECF #149.2
These
See Grievance: #170753 (dated 06/01/2011, grieving
adoption of new PPM Cor.12.03); #165713 (dated 02/24/2011,
grieving denial of copies and mishandled mail); #157590 (dated
03/31/2011, grieving conspiracy between prison guards,
(continued...)
7
grievances do not support a finding that Plaintiff exhausted his
prison administrative remedies for the claims raised herein.
Defendants submitted an additional four grievances.
See Asato Decl., ECF 146-2.
Only three of these grievances are
timely and relate to Plaintiff’s claims that Defendants denied
him adequate nutrition: Grievance #163528, #157557, and #157470.3
The court considers only these three grievances to determine
whether Plaintiff fully and properly exhausted his claims before
filing his Complaint.
1. Grievance #163528, Step-1, dated December 8, 2009:
Plaintiff complains that he is receiving smaller portions of
food, is deprived of snacks, and is being deprived of proper
nutrition because of State budget cuts. He requests double
portions to enable him to gain weight. Tumminello denied
this grievance because Plaintiff was considered medically
overweight, and stated there was no medical need for more
food. Tumminello noted that Plaintiff could purchase snacks
at the prison store. Plaintiff refused to sign for receipt
of Tumminello’s decision; on January 11, 2010, this
grievance was closed for non-compliance with prison
(...continued)
“Portuguese Syndicate,” Plaintiff’s family, the Mormon Church,
and others); #170747 (dated 05/28/2011, grieving denial of soap,
shampoo, and deodorant); #170754 (dated 06/05/2011, grieving
prison’s use of inmates’ SSN on grievances); #157593 (dated
04/05/2011, grieving staff refusal to provide him with more than
one grievance form at a time); #165720 (dated 03/07/2011,
grieving denial of copies and mishandled legal mail).
3
Defendants discuss four more of Plaintiff’s Grievances:
#158558 (dated 08/13/2011); #17907 (dated 12/01/2011); #171921
(dated 02/17/2012); and #171952 (dated 02/13/2012). These
grievances are dated after Plaintiff initiated this suit.
Plaintiff concedes to this in Grievance #171921, when he explains
the grievance is an “emergency” because this “lawsuit [is] in
progress.” See ECF #149-6 PageID #911. Because they are
untimely, the court does not consider them properly filed.
8
grievance policy.
Plaintiff did not appeal.
2. Grievance #157557, Step-1, dated January 26, 2011:
Plaintiff complains that he is losing weight and is not
receiving the double portions of food and snacks approved by
Dr. Paderes. Plaintiff requests an investigation and
reinstatement of Dr. Paderes’s double portions memo.
Tumminello denied this grievance, stating that Plaintiff was
at his ideal weight, there is no medical reason for his
weight loss, and that he should therefore direct his
grievance to Food Services and the Warden. Tumminello
informed Plaintiff that he had five days to appeal her
decision. Plaintiff timely acknowledged receipt of
Tumminello’s response, but failed to return the form as
required. This grievance was terminated for Plaintiff’s
refusal to return the form. Plaintiff did not appeal.
3. Grievance #157470, Step-1, dated April 13, 2011:
Plaintiff complains that he is being denied the double
dinner portions approved by Dr. Paderes at Dr. Rosen’s
orders. Rivera returned the grievance because Plaintiff
failed to properly complete the form and failed to submit
all four carbon copies (that are part of the grievance).
Rivera notified Plaintiff that he could correct and resubmit
the grievance within five days. Plaintiff signed an
“Acknowledgment of Notification of Return/Denial (“NORD”),
but failed to resubmit the grievance, terminating the
grievance process on this claim. Plaintiff did not appeal.
Prisoners must exhaust their administrative remedies
before filing suit to give prison officials a chance to remedy
justified inmate grievances without the necessity of court
action.
This purpose cannot be fulfilled if a prisoner files
suit before he fully exhausts his claims and allows prison
officials to remedy the problem.
As noted, most of Plaintiff’s
grievances were either filed after he commenced this action or
they do not relate to the claims raised in this action.
His
remaining timely and relevant grievances were never properly
9
completed or appealed through the DPS PPM grievance procedures.
The record before the court shows that Plaintiff was clearly
notified how to proceed and what he needed to do to resubmit his
grievances.
See Liu Decl. Exs. D-G, ECF #146-6-#146-10.
failed to do so.
He
Compliance with an agency’s deadlines and other
critical procedural rules is required.
Ngo, 548 U.S. at 90.
Section 1997(e) (a) “eliminated both the discretion to
dispense with administrative exhaustion and the condition that
the remedy be ‘plain, speedy, and effective’ before exhaustion
could be required.”
Booth, 532 U.S. at 739.
The Supreme Court
stressed that it “will not read futility or other exceptions into
statutory exhaustion requirements where Congress has provided
otherwise.”
Id. at 741 n.6.
It also expressed concern about
bypassing administrative remedies.
Ngo, 548 U.S. at 96.
Plaintiff failed to properly complete the grievance process
regarding his claims before he commenced this action and it must
be dismissed without prejudice.
III.
1.
CONCLUSION
Defendant’s Motion to Dismiss the Complaint for
Plaintiff’s failure to exhaust prison administrative remedies is
GRANTED.
2.
Plaintiff’s Complaint and action are DISMISSED without
prejudice.
3. The Clerk of Court is directed to enter judgment and
10
close this case.
4.
The court certifies, pursuant to 28 U.S.C. § 1915(a)(3)
and Federal Rules of Appellate Procedure 24(a)(3)(A), that an
appeal of this decision would not be taken in good faith.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 13, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Tia v. Paderes, 1:11-cv-00459 LEK/KSC, ORDER GRANTING MOTION TO DISMISS FOR
FAILURE TO EXHAUST; G:\docs\prose attys\Exh Ords\2012\Tia 11-459 lek (grt).wpd
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?