Maschek v. Valdez et al

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATIONS 31 : denying as moot 17 Motion; denying as moot 18 Motion to Appoint Counsel; denying as moot 19 Motion to Stay; granting 20 Motion to Dismiss; and denying as moot 28 Motion in Limine. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dmc)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SPENCER MASCHEK,
Case No. 3:11-cv-00369-EJL-LMB
Plaintiff,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
PHILIP VALDEZ, et al.,
Defendants.

On March 6, 2013, United States Magistrate Judge Larry M. Boyle issued a Report
and Recommendation and Order (the “Report”) in this matter. (Dkt. 31.) The Report
recommends that the Defendants’ Motion to Dismiss be granted and Plaintiff’s Complaint
be dismissed without prejudice. (Dkt. 31.) The Report stated that pursuant to 28 U.S.C. §
636(b)(1) and Local Rule 72.1, the parties had until March 21, 2013 in which to file written
objections to the Report. No objections were filed by the parties and the time for doing so has
passed.

ORDER

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STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.” Where
the parties object to a report and recommendation, this Court “shall make a de novo
determination of those portions of the report which objection is made.” Id. Where, however,
no objections are filed the district court need not conduct a de novo review. In United States
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements
of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo if
objection is made, but not otherwise. As the Peretz Court instructed, “to the
extent de novo review is required to satisfy Article III concerns, it need not be
exercised unless requested by the parties.” Peretz, 501 U.S. at 939 (internal
citation omitted). Neither the Constitution nor the statute requires a district
judge to review, de novo, findings and recommendations that the parties
themselves accept as correct. See Ciapponi, 77 F.3d at 1251 (“Absent an
objection or request for review by the defendant, the district court was not
required to engage in any more formal review of the plea proceeding.”); see
also Peretz, 501 U.S. at 937-39 (clarifying that de novo review not required for
Article III purposes unless requested by the parties) . . . .
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to the
extent that no objections are made, arguments to the contrary are waived. See Fed. R. Civ.
P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days
of service of the Report and Recommendation). “When no timely objection is filed, the Court
need only satisfy itself that there is no clear error on the face of the record in order to accept

ORDER

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the recommendation.” Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v.
United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)).
In this case, no objections were filed so the Court is not required to conduct a de novo
determination of the Report. The Court has, however, reviewed the Report as well as the
record in this matter for clear error on the face of the record and finds as follows.
DISCUSSION
Plaintiff raises various § 1983 claims against the Defendants regarding the conditions
of his confinement at the Idaho Correctional Center (“ICC”). (Dkt. 3.) Attached to the
Complaint are several Concern Forms the Plaintiff submitted while at ICC reporting an
assault and theft upon him, a request for clean clothes, and requests to be moved. (Dkt. 3.)
Plaintiff alleges the Defendants were deliberately indifferent to his health and safety,
primarily, by failing to respond to these reports and otherwise properly protect him in
violation of his constitutional rights. Defendants brought this Motion to Dismiss pursuant to
Rule 12(b) alleging the Plaintiff failed to exhaust his administrative remedies. (Dkt. 20.) “In
deciding such a motion—which is considered an unenumerated Rule 12(b) motion—‘the
court may look beyond the pleadings’” and decide disputed issues of fact. Akhtar v. Mesa,
698 F.3d 1202, 1209-10 (9th Cir. 2012) (quoting Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th
Cir. 2003)).

ORDER

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“The Prison Litigation Reform Act requires that a prisoner exhaust available
administrative remedies before bringing a federal action concerning prison conditions.”
Akhtar, 698 F.3d at 1210 (quoting Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009)
(citing 42 U.S.C. § 1997e(a) (2008)). “The failure to exhaust administrative remedies is an
affirmative defense on which the defendant bears the burden of proof.” Id. (citing Wyatt, 315
F.3d at 1119). Because “there can be no absence of exhaustion unless some relief remains
available, a defendant must demonstrate that pertinent relief remain[s] available, whether at
unexhausted levels of the grievance process or through awaiting the results of the relief
already granted as a result of that process.” Id. (quoting Brown v. Valoff, 422 F.3d 926,
936–37 (9th Cir. 2005) (internal quotation marks omitted)).
The Report concluded that Plaintiff had failed to exhaust his administrative remedies
because he had not complete the ICC’s grievance procedures. Specifically, the Report found
that Plaintiff had not pursued further administrative relief on the Concern Forms he had filed,
which are in the record, and that there is no record that Plaintiff had filed an Emergency
Grievance as he now alleges. (Dkt. 31.) This Court’s own review of the record in this case
finds no clear error on the face of the record in the Magistrate Judge’s conclusion. The
Plaintiff filed numerous Concern Forms none of which were followed up on or
administratively exhausted as provided for in ICC’s procedures. The only factual issues that
appear to be in dispute are as to the existence of 1) a six-page letter the Plaintiff contends he

ORDER

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sent to the Warden and 2) an Emergency Grievance form the Plaintiff claims he filed on
October 30, 2009.
There is no evidence in the record to support the Plaintiff’s argument that these two
documents exist. The Declaration of the Grievance Coordinator, Margaret Purcell, states that
there is no record that the Plaintiff ever filed a timely Emergency Grievance form related to
the claims raised in this case between October 27, 2009 and January 31, 2010. (Dkt. 20-2 at
¶ 32.) The Defendants’ point out that the Plaintiff has not produced a copy of either
document. (Dkt. 20 at p. 8 and Dkt. 24 at p. 4-6.) Furthermore, Defendants argue the fact that
the Plaintiff filed numerous Concern Forms shows that he knew how to bring complaints to
the attention of the prison staff, the procedures for doing so, and that he should retain a copy
of the completed forms for his own records. (Dkt. 24 at 7.)
Plaintiff disputes that he could have made a copy of the letter or retained a copy of the
Emergency Grievance. (Dkt. 23, 25.)1 However, the Declaration of the Grievance
Coordinator rebuts the Plaintiff’s claims noting the Emergency Grievance forms are set up
the same way as the Concern Forms and, therefore, the Plaintiff could have retained a copy
of the Emergency Grievance in the same fashion as he did with the Consent Forms which are

1

Following the Defendant’s reply brief begin filed, the Plaintiff filed a second response brief to the
Motion to Dismiss. (Dkt. 25.) Defendants have objected to the Plaintiff’s second response and ask if the Court
is going to consider the same that they be given an opportunity to file a response. (Dkt. 26.) The Plaintiff asks
that the Court allow and consider his second response brief as an amendment to his response. (Dkt. 27.) Given
the Plaintiff’s pro se status, the Court finds it appropriate to consider the Plaintiff’s second response brief.
See Akhtar, 698 F.3d at 1212. Although the Defendants have asked for leave to respond to the same, the Court
finds the arguments in the second response brief were raised in his first response and have been addressed
in the Defendant’s other filings on the Motion. (Dkt. 23 at 5-7.) As such, no further briefing from the
Defendants is needed.
ORDER

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in the record. (Dkt. 20-2 at ¶ 32.) As to the letter, the Plaintiff does not dispute the
Defendants’ argument that the letter does not constitute proper exhaustion. (Dkt. 24 at 4.) It
is notable too that the Plaintiff does not refer to the letter or the Emergency Grievance in any
of the Concern Forms that were filed and are in the record.2 Based on the foregoing, this
Court agrees with the conclusion of the Report that the Defendants have established that the
Plaintiff failed to exhaust his administrative remedies in this case.
In so concluding, the Court is mindful that it has “an obligation where the petitioner
is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford
the petitioner the benefit of any doubt.” Akhtar, 698 F.3d at 1212 (quoting Bretz v. Kelman,
773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc)). “A district court should not dismiss a
pro se complaint without leave to amend unless it is absolutely clear that the deficiencies of
the complaint could not be cured by amendment.” Id. (citation omitted). In this case, the
Court finds that it is clear that the Plaintiff failed to exhaust his administrative remedies as
required under the Prison Litigation Reform Act. Akhtar, 698 F.3d at 1210; 42 U.S.C. §
1997e(a) (2008). Accordingly, the Court will adopt the recommendation of the Report and
grant the Motion to Dismiss.

2

The Plaintiff did file a Concern Form on January 20, 2010, after he was transferred from ICC, that
stated he had filed numerous “grievances” and that he feels he has “exhausted administrative resolutions [sic]
being assaulted.” (Dkt. 3-1 and Dkt. 20-2 at ¶ 31.) This Concern Form, however, is outside of the Idaho
Department of Correction’s policy’s thirty-day time requirement for filing a grievance. (Dkt. 20, Ex. B at p.
5.) Further, the vague reference to “grievances” having been filed does not go to show the Plaintiff had filed
anything other than the Concern Forms that are in this record; let alone sent any letter or filed an Emergency
Grievance as Plaintiff now alleges.
ORDER

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ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation (Dkt. 31) is ADOPTED AND INCORPORATED HEREIN.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (Dkt. 20) is
GRANTED and the remaining Motions (Dkt. 17, 18, 19, and 28) are MOOT.

DATED: March 28, 2013

Honorable Edward J. Lodge
U. S. District Judge

ORDER

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