The opinion of the court was delivered by: JAMES STIVEN, Magistrate Judge
(1) REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
DENYING DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED.R.CIV.P.
12(b) AND 42 U.S.C. § 1997e(a); AND
(2) ORDER RE OSC; DECLINING TO IMPOSE SANCTIONS PURSUANT TO
This Report and Recommendation is submitted to United States
District Court Judge M. James Lorenz pursuant to
28 U.S.C. § 636(b)(1) and Local Rule 72.3 of the United States District Court
for the Southern District of California.
On September 22, 2004, Plaintiff Calvin Dwayne Holt, an inmate
currently incarcerated at California Medical Facility (CMF),
filed a Complaint against Defendants Warden Robert J. Hernandez,
Associate Warden Brenda Early, Associate Warden of Business
Services Octavio Peraza, and Facility 1 Laundry Personnel Chris Howerton pursuant
to 42 U.S.C. § 1983. The Complaint alleges three causes of
action, each stating a violation of Plaintiff's Eighth Amendment
right to freedom from cruel and unusual punishment, and
Fourteenth Amendment rights to due process and equal protection
of the law. Plaintiff alleges these violations occurred when
Defendants regularly failed to provide inmates with clean bed
linens, creating unsanitary conditions, and when prison
administration subsequently failed to respond to Plaintiff's
administrative appeal at the second formal level.
On March 29, 2005, Defendants filed a motion to dismiss
Plaintiff's complaint pursuant to Federal Rules of Civil
Procedure 12(b). The motion was brought on grounds that Plaintiff
failed to allege and exhaust all administrative remedies as
required by the Prison Litigation Reform Act ("PLRA"),
42 U.S.C. § 1997e.
On May 19, 2004, Plaintiff Calvin Dwayne Holt, a California
state prisoner who was incarcerated at the R.J. Donovan
Correctional Facility ("Donovan") in San Diego at the time of the
alleged violations, claims he submitted a CDC Form 602 appeal to
prison staff due to the prison's failure to regularly distribute
bed linens to the inmates. Plaintiff requested compensatory and
punitive damages, each in the amount of $5,000, and
implementation of procedures upholding the inmates' rights to
exchange their sheets weekly. Compl., Attach. 1 at 1. An informal
level staff response was issued on May 28, 2004, stating that
sheets were exchanged on a weekly basis and new sheets would be
distributed once they arrived at the institution. Id. On May
29, 2004, Plaintiff filed his first formal level appeal seeking
the same relief initially requested in his informal appeal.
On July 6, 2004, the institution partially granted Plaintiff's
appeal, stating that the Facility 1 clothing supervisor would
continue to monitor clothing and linen needs. However, the
institution stated that Plaintiff's allegations of staff
misconduct, and his request for compensatory, and punitive
damages had not been substantiated. Compl., Attach. 1 at 5.
Plaintiff took his appeal to the second formal level on July 15,
2004, and amended it to include the defendants named in this
complaint as persons Plaintiff believed to be responsible for the alleged constitutional violations. Compl., Attach. 1 at 2,6. On
August 20, 2004, Plaintiff notified the Facility 1 Appeals
Coordinator that he had not received a second level response to
his appeal which was six days overdue. Plaintiff demanded a
response to said appeal, or he would view his attempts at
resolving the issue as "FUTILE", and initiate federal court
proceedings. Compl., Ex. B, 2. On August 28, 2004, the
institution responded to this notification, and stated that a
response had been due by August 24 and an overdue notice would be
sent. Compl., Ex B 1. Neither Plaintiff nor Defendants have
provided a copy of any second level response.
On September 22, 2004, Plaintiff filed this civil rights action
pursuant to 42 U.S.C. § 1983. Judge Lorenz granted Plaintiff's
motion to proceed in forma pauperis. The Court simultaneously
screened the Complaint in order to make a preliminary
determination as to whether the Complaint required sua sponte
dismissal on grounds that it was frivolous, malicious, failed to
state a claim, or sought monetary damages against defendants who
were immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§
1915(e)(2)); Resnick v. Hayes, 213 F.3d 4433, 446 (9th Cir.
2000) (§ 1915A). Finding sua sponte dismissal inappropriate,
Judge Lorenz instead directed the U.S. Marshal to effect service
on Plaintiff's behalf on December 28, 2004. Defendants filed a
waiver of service of summons on January 11, 2005 which required
Defendants to file an Answer or a motion pursuant to Rule 12 no
later than March 11, 2005.
On March 28, 2005, Plaintiff filed a motion for default
judgment for failure by Defendants to plead or otherwise defend
against Plaintiff's Complaint. Pls.' Mot. for Default J. at 1.
The Court denied Plaintiff's motion on April 11, 2005, because
Defendants had filed a motion to dismiss on March 29, 2005,
shortly after the time Plaintiff's request for entry of default
was filed with the Court. Defendants claim Plaintiff failed to
exhaust all administrative remedies required by the Prison
Litigation Reform Act, 42 U.S.C. § 1997e, before filing in
federal court. Dfs.' Mot. to Dismiss at 1. Along with this
motion, Defendants filed the declaration of A.L. Cota, the
appeals coordinator at R.J. Donovan Correctional Facility, which
alleges that there is no record indicating Plaintiff sought
further review to the Director's level, the final level of
appeal. Cota Decl., ¶ 4. However, the declaration of A.L. Cota
also confirms Plaintiff filed a second level appeal and while the prison's
computer record shows that a second level response was issued and
"may have been granted;" however, "the terms and extent" of the
response are "unknown because the second level decision could not
be found despite diligent search." Id.
On April 27, 2005, Plaintiff filed his opposition to
Defendants' motion to dismiss. Plaintiff argues that he attempted
to exhaust his administrative remedies before filing suit, but
was obstructed from doing so by prison personnel. Pls.' Mem. P. &
A. for Opp'n to Defs.' Mot. to Dismiss at 1. Plaintiff further
alleges the Deputy Attorney General committed an impropriety
because the Deputy submitted an "altered" page to the original
602 Appeal. Id. at 2. Defendants filed a reply to Plaintiff's
opposition on May 9, 2005. Defendants claim that they failed to
attach a "`D' Section Continuance" because Plaintiff is the only
person in possession of that document. Defendants further claim
that Plaintiff's allegation that Defendants submitted an
"altered" continuance page to his appeal is meritless and
irrelevant. Defs.' Mem. P. & A. for Reply to Pls.' Opp'n to Mot.
to Dismiss at 1-2.
III. Defendants' Motion to Dismiss Plaintiff's Complaint
pursuant to FED.R.CIV.P.12(b)
Defendants move to dismiss Plaintiff's Complaint for failing to
exhaust available administrative remedies pursuant to
FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a).
1. Standard of Review per FED.R.CIV.P. 12(b) and