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Hunter v. Alameida


May 20, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND TERMINATING ALL OTHER PENDING MOTIONS (Docket nos. 81, 90, 91, 94, 95, 99, 101, 104, 109, 111, 112, 113, 114, 118, 119)


Plaintiff Dannez W. Hunter, a State prisoner incarcerated at Atascadero State Hospital, filed this civil rights action pursuant to 42 U.S.C. § 1983 against prison officials at San Quentin State Prison (SQSP). In an Order dated February 6, 2004, the Court ordered three claims served on the named Defendants.*fn1 Defendants now move to dismiss the complaint on the ground that Plaintiff has failed to exhaust his administrative remedies or in the alternative for summary judgment. Plaintiff has filed an opposition to Defendants' motion. For the reasons discussed below, the Court grants Defendants' motion to dismiss the complaint.


Because the Court grants Defendants' motion to dismiss on procedural grounds the allegations in the complaint need not be discussed in detail. To summarize, the Court previously found cognizable the following three claims asserted by Plaintiff against prison officials at SQSP:

1. Retaliation claims against Defendants D. Wooten, Dr. Calvo and Correctional Officer Russell A. Sheldon, stemming from the filing of Plaintiff's November 8, 2001, grievance.

2. Excessive force claims against Defendants Dr. J. Mahoney, Lt. R.E. Crayton, Capt. J. Nunez and Lt. A.D. Lee, stemming from a December 6, 2001, forced cell extraction.

3. Forced medication claims against Defendants Dr. J. Mahoney, Dr. Johnson, and Dr. Poston, stemming from a December 6, 2001, administration of psychotropic medication.

Defendants argue in their motion to dismiss that the Court cannot proceed to decide the merits of these claims, however, because Plaintiff has not satisfied the administrative exhaustion requirement. In his opposition Plaintiff concedes that he did not exhaust his claims but argues that he should not have to because prison officials intentionally prevented him from so doing. The Court now considers whether Defendants' evidence is adequate to establish that Plaintiff failed to exhaust administrative remedies with respect to the present claims. See Wyatt, 315 F.3d at 1120.



The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Nonexhaustion under § 1997e(a) is an affirmative defense -- defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 124 S.Ct. 50 (2003). It should be raised in an unenumerated Rule 12(b) motion rather than in a motion for summary judgment. Id. at 1119. In deciding such a motion the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. If the court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal without prejudice. Id. at 1120.

A prisoner's concession to nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies. Id. at 1120. Accordingly, a claim may be dismissed without prejudice if it is clear from the record that the prisoner has conceded that he did not exhaust administrative remedies. See id.

Under 42 U.S.C. § 1997e(a), an action must be dismissed unless the prisoner exhausted his available administrative remedies before he filed suit, even if the prisoner fully exhausts while the suit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 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." Porter v. Nussle, 534 U.S. 516, 532 (2002).

Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 739-40 & n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id. at 741. The purposes of the exhaustion requirement include allowing the prison to take responsive action, filtering out frivolous cases, and creating an administrative record. See Porter, 534 U.S. at 525.


The State of California provides its inmates and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the right to file administrative appeals alleging misconduct by correctional officers. See id. § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. See id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the administrative remedies exhaustion requirement under § 1997e(a). See id. at 1237-38.


The Court now considers whether Defendants' evidence is adequate to establish that Plaintiff failed to exhaust administrative remedies with respect to the present claims. See Wyatt, 315 F.3d at 1120.

In support of their motion to dismiss Defendants provide the declaration of Ed Wright, the appeals coordinator at the California Men's Colony, the institution where Plaintiff was incarcerated when he filed this action. Wright reviewed the portion of Plaintiff's prison file (C-File) containing his inmate appeals and appeal responses from November 8, 2001, through August 31, 2004. Wright states in his declaration that he found the following:*fn2

2. I located two appeals (numbers 02-463 and 02-627) which make reference to Plaintiff's claims in connection with the cell extraction and involuntary medication of December 6, 2001. These appeals also arguably make vague reference to Plaintiff's claims of retaliation.

3. By appeal number 02-627, Plaintiff specifically requested that the prison launch an "investigation." This appeal was reviewed at the first formal level of review by a staff psychologist, Dr. Rozynko, who, in his first level response, summarized his findings. Presumably on the basis that the requested "investigation" had therefore been conducted, Mr. Rozynko "granted" the appeal. According to the records contained in Plaintiff's C-File, Plaintiff never received any further review of this grievance at any additional level of review. A true and correct copy of appeal number 02-627 is attached hereto.

4. By appeal number 02-463, Plaintiff specifically requested the assistance of an "attorney." This appeal was reviewed at the first level of review. By the first-level response, Plaintiff was provided the name of the "Prison Law Office." Accordingly, since the reviewer referred Plaintiff to an attorney in response to his request, the appeal was "granted" at the first level of review. A true and correct copy of appeal number 02-643 is attached hereto.

5. Because no further documentation concerning these grievances could be located in Plaintiff's file, it is reasonable to presume that, barring any error, Plaintiff never received review of either of these appeals beyond the first level.

Wright Decl. ISO Motion to Dismiss.

The Court's review of the records referenced by the declaration shows Wright's depiction to be accurate.

In opposition to the motion to dismiss Plaintiff concedes that he did not exhaust his administrative remedies further than the first formal level of review. He states that he was unable to do so, however, because Defendants obstructed his access to the appeal forms for five months (from November 7, 2001, through April 29, 2002) in retaliation for Plaintiff's attempts to engage in politically protected activities and therefore he should be granted "automatic" exhaustion.

The Court finds Plaintiff's argument meritless. First, his allegations simply are not supported by the record. The copies of the appeals submitted by Plaintiff show that he submitted appeal number 02-463 on February 2, 2002, and that the first formal level response was returned to him on February 22, 2002. Similarly, he submitted appeal number 02-627 on February 14, 2002, and the first level formal response was returned to him on April 6, 2002. Notably, all of these relevant dates are within the time period during which Plaintiff alleges appeal forms were not made available to him.

Second, even if he was denied access to the administrative grievance system for five months this does not excuse him from attempting to exhaust his administrative remedies thereafter.

Specifically, he has not shown that no further administrative remedies were available to him. For example, he was not unambiguously told that no further appeal could be taken. See, e.g., Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (prisoner placed on grievance restriction who was also told by guards that they would not deliver his grievance to the prison grievance office has no "available" administrative remedies); Freeman v. Snyder, No. Civ. A. 98-636-GMS, 2001 WL 515258, at *6 (D. Del. April 10, 2001) (despite written grievance policy that appeared to apply to the prisoner's claims, statements by correctional officers that issue was not grievable established that no administrative remedies were available). In fact, Plaintiff never states that after the alleged five-month delay he made any attempt to exhaust his administrative remedies further, either at SQSP or upon being transferred to the California Men's Colony.

Although Plaintiff is not required to allege that he resorted to extraordinary measures in order to exhaust his administrative remedies, conclusory allegations that the administrative remedies process is inadequate are insufficient to defeat dismissal for failure to exhaust. See White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997). Moreover, if Plaintiff did belatedly pursue his administrative appeals and they were deemed time-barred he would still be entitled to proceed in federal court. See Ngo v. Woodford, 403 F.3d 620, 631 (9th Cir. 2005) (a prisoner has completed all avenues of administrative review available to him when his appeal was deemed time-barred and no further level of appeal remains in the State appeals process).

The claims Plaintiff has raised are serious in nature, especially those pertaining to the use of excessive force and the forced administration of psychotropic medications. In such circumstances it is particularly appropriate that SQSP and Department of Corrections officials be granted the first opportunity to develop a factual record and respond to the allegations. Accordingly, because it is clear from the motion to dismiss and Plaintiff's opposition thereto that Plaintiff did not exhaust his administrative remedies and no exception to exhaustion applies, the action must be dismissed without prejudice and without leave to amend.


For the foregoing reasons and good cause shown, the Court finds that the evidence is adequate to support Defendants' affirmative defense of nonexhaustion of administrative remedies, and GRANTS their Rule 12(b) unenumerated motion to dismiss the complaint without prejudice as unexhausted (docket no. 81). This finding is based upon the pleadings and exhibits submitted by Defendants in support of the motion to dismiss and upon the allegations in Plaintiff's opposition thereto. All other pending motions are DENIED as moot and are hereby TERMINATED. The Clerk of the Court shall enter judgment and close the file.


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