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Uriarte v. Schwarzenegger

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 13, 2008

FRANCISCO URIARTE, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET. AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. Nos. 43, 47, 57)

On August 2, 2006 Plaintiff Francisco Uriarte ("Plaintiff"), a state prisoner proceeding pro se, commenced this action alleging various constitutional, common law, and 42 U.S.C. § 1983 claims. (Doc. No. 1.) On February 4, 2008 Magistrate Judge William McCurine, Jr. issued a Report and Recommendation ("Report") recommending that Defendant Arnold Schwarzenegger et. al.'s (collectively, "Defendants") motion to dismiss the complaint be granted in part and denied in part, and that Petitioner's motion for "summary judgment" be denied. (Doc. No. 57.) Both Plaintiff and Defendants submitted timely objections and replies. (Doc. Nos. 59, 60.) The Court decides the matter on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d.1). For the following reasons, the Court ADOPTS the Report, OVERRULES the parties' objections, GRANTS-IN-PART and DENIES-IN-PART Defendants' motion to dismiss, and DENIES Plaintiff's motion for summary judgment. (Doc. Nos. 43, 47, 57).

I. BACKGROUND

Plaintiff Francisco Uriarte is a state prisoner currently incarcerated at Ironwood State Prison in Blythe, California. (Report 1.) Defendants are a collection of people who are responsible or work for the California prison system. The following description of events is taken from the parties' pleadings and is not to be construed as findings of fact by the Court.

On February 7, 2004 Plaintiff alleges that Defendant Martinez ("Martinez") was working the prison's Building 13 tower panel, which controlled access into and out of prisoner cells. (Id. 2.) Plaintiff asserts that while he exited the open threshold of his cell, Martinez suddenly closed the sliding door, crushing Plaintiff between the cell door and the door jamb. (Id.) Although Plaintiff's cell-mate yelled at Martinez to open the door, Plaintiff contends that Martinez waited until he released all other inmates before doing so. (Id.) When Martinez finally released the door, Plaintiff alleges that Martinez "suddenly re-slammed the door against Plaintiff's body for a second time." (Id.) Plaintiff believes that he was seriously injured as the result of the cell door twice closing on him, and asserts that Martinez and Defendant Hurm refused him medical attention. (Id.)

From February 7 to February 13, 2004 Plaintiff alleges that he requested medical attention from Defendant Williams, Defendant Jones, Defendant Ramirez, Defendant Spence, Defendant Reed and Defendant Comaucho, whom all refused. (Id.) On or about February 13, 2004 Dr. Jenkins examined Plaintiff and ordered an X-Ray of Plaintiff's left side. (Id. 2--3.) On February 17, 2004 Plaintiff's X-Ray showed a healing fracture on Plaintiff's left ninth anterior rib. (Id. 3.) Plaintiff alleges that he was not informed of the X-Ray results or given proper medical attention. (Id.)

On May 5, 2004 Dr. Jenkins ordered additional X-Rays. (Id.) On June 14, 2004 Plaintiff asserts that Dr. Choo, a different doctor, took another X-Ray which confirmed Dr. Jenkins' diagnosis. (Report 3.) Plaintiff contends that both Dr. Jenkins and Dr. Choo diagnosed injury to his ribs. (Id.)

On August 2, 2006 Plaintiff filed this action alleging, among other claims, federal and state civil rights violations. (Doc. No. 1.) On July 11, 2007 Defendants moved to dismiss the complaint. (Doc. No. 47.) On September 4, 2007 Plaintiff opposed, and on October 1, 2007 Defendants filed a reply. (Doc. Nos. 51, 53.) On February 4, 2008 the Magistrate Judge filed his Report, recommending that Defendants' motion to dismiss be granted in part and denied in part. (Doc. No. 57.) On February 25, 2008 Defendants filed their objections to the Report. (Doc. No. 59.) On February 28, 2008 Plaintiff followed suit. (Doc. No. 60.) Both parties also submitted timely replies. (Doc. Nos. 61, 63.)

II. LEGAL STANDARD

The Court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See North Star Int'l. v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, "even if doubtful in fact," are assumed to be true. Id. The court must assume the truth of all factual allegations and must "construe them in the light most favorable to the nonmoving party." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996).

As the Supreme Court recently explained, "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1964--65. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

Where a plaintiff appears in propria persona in a civil rights case, the court must also be careful to construe the pleadings liberally and afford plaintiff any benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). However, at a minimum, even a pro se plaintiff must allege with at least some degree of particularity over acts which defendants engaged in that support his claim. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984).

III. DISCUSSION

Having read and considered the underlying Complaint, Motion to Dismiss, Report and Objections thereto, the Court concludes that the Report presents a well-reasoned analysis of the issues raised in the Complaint and Motion to Dismiss. For the following reasons, the Court finds that the Report correctly concluded that Defendants' motion should be granted in part and denied in part.

A. Plaintiff Does Not Object to the Report's First, Second, Fourth, Eighth, Ninth and Tenth Conclusions Against Him

The Magistrate Judge's Report recommends, among other things, that: (1) Defendants' motion to dismiss Plaintiff's claims against all defendants sued in their official capacity be granted; (2) Defendants' motion to dismiss Plaintiff's claim for injunctive relief be granted; (4) Defendants' motion to dismiss Plaintiff's Fourteenth Amendment claim be granted; (8) Defendants' motion to dismiss Plaintiff's conspiracy claim be granted; (9) Defendants' motion to dismiss Plaintiff's state law claims be granted; and (10) Plaintiff's motion for summary judgment be denied. (Report 25--26.) Plaintiff does not object to these conclusions and specifically concedes these issues. (Pls.' Objections 2.)

A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(holding that 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")(emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding that where no objections were filed, the District Court had no obligation to review the magistrate judge's Report). This rule of law is well established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, de novo review of a R & R is only required when an objection is made to the R & R.")(emphasis added)(citing RenyaTapia, 328 F.3d 1121).

Because neither Plaintiff nor Defendant object to the Report's first, second, fourth, eighth, ninth, and tenth conclusions, the Court ADOPTS the Report's recommendations on those issues in their entirety, GRANTS Defendants' motion to dismiss those particular claims and DENIES Plaintiff's motion for summary judgment, and DISMISSES the relevant claims WITHOUT PREJUDICE.

B. Plaintiff's Pursuit of Administrative Remedies

Defendants argue that Plaintiff failed to exhaust his administrative remedies before bringing this action. (Report 6.) Plaintiff contends that any delay in pursuing administrative relief is due solely to Defendants' obfuscation. (Report 8.) The Report reviewed Plaintiff's two administrative grievances and found that while his first grievance's appeals were unexhausted, the claims arising from his second grievance were properly before this Court. (Report 11, 12--13.) Plaintiff objects to the Report's conclusion, arguing that he was unable to meet his first grievance's deadlines because Defendants delayed his mail. (Pl.'s Objections 5--7.) Defendants also object, contending that Plaintiff still has additional administrative remedies with which to exhaust his second grievance, and that Plaintiff's second grievance is unexhausted against certain defendants included in his claims. (Defs.' Objections 4--5.)

The Ninth Circuit has held that failure to exhaust non-judicial remedies is a matter of abatement not going to the merits of the case and is properly raised pursuant to a motion to dismiss. Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368--69 (9th Cir. 1988). In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 369.

The Prison Litigation and Reform Act ("PLRA") amended 42 U.S.C. § 1997e to provide that "no 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) Exhaustion is required prior to the filing of any prisoner lawsuit concerning prison life, whether the claims involve general conditions or specific incidents and whether they allege excessive force or some other wrong. Porter v. Nussle, 534 U.S. 516, 532 (2002). "Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a pre-requisite to suit." Id. at 524.

The State of California provides its prisoners and parolees the right to administratively appeal any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare. Cal. Code Regs. tit. 15, § 3084.1(a). Exhausting the administrative appeals process involves several steps: (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 finally (4) "third level appeal" to the Director of the California Department of Corrections. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). The third level, or "Director's Level," of review shall be final and exhausts all administrative remedies available in the Department of Corrections. Cal. Dep't of Corrections Operations Manual § 54100.11, "Levels of Review"; Barry, 985 F. Supp. at 1237--38; Irvin v. Zamora, 161 F. Supp. 2d 1125, 1129 (S.D. Cal. 2001).

i. Plaintiff's First Grievance: RJD-04-979

Defendants argue that Plaintiff's first grievance-complaining about Martinez's actions-was not appealed in a timely fashion. Specifically, Defendants argue that Plaintiff received his response to his second level appeal on December 29, 2004 and did not file a third level appeal until February 15, 2005. (Mot. to Dismiss 10--12.) The Report agrees with Defendants, concluding that Plaintiff failed to exhaust the administrative process because he waited over fifteen days to pursue a third level appeal after receiving the second level response. (Report 9--12.) Plaintiff objects, arguing that he actually received his second level response on January 28, 2005, and had fifteen days until that date to pursue a third level appeal. (Pl.'s Objections 6--8.)

Under California Code of Regulations title 15, section 3084.6(c) an appellant must file his appeal within fifteen working days of the decision being appealed or of receiving an unacceptable lower level appeal decision. Because the regulation is not clear on the issue of when the moment of filing has occurred, the Court looks at the interpretation of similar regulations. See Houston v. Lack, 487 U.S. 266 (1988). In Houston, the Supreme Court held that a prisoner acting pro se will be found to have "filed" their notice of appeal the moment the notice is handed over to prison authorities for mailing. Id. at 270--72.

In this case, the timeliness issue turns on when Plaintiff actually received the results of his second level review, when Plaintiff actually submitted his appeal for third level review, and whether the two dates were within fifteen working days of each other. Establishing the dates Plaintiff received and submitted his appeals is difficult-Plaintiff contends that the prison delayed delivering his mail, Defendants' policies and mail logs assume (but do not prove) prison guards promptly deliver and pick-up inmate mail, and each party has an incentive to allege the other's idleness.

While Plaintiff submits a crude affidavit allegedly proving receipt of his second level results on January 28, 2005, Defendants point to Section G on Form 602 showing receipt on December 29, 2004. (Compare Compl. Ex. K at 34 with Def.'s Mot. to Dismiss 11.) And while Plaintiff points to Section H on Form 602 showing that he submitted his appeal for third level review on February 15, 2005, Defendants argue that the Inmate Appeals Board received Plaintiff's submission on February 22, 2005. (Compare Compl. Ex. K at 26 with Def.'s Mot. to Dismiss 11, T. Emigh Decl. ¶ 8.)

Because both parties had access to Form 602 and could amend or correct any incorrect dates thereon, for the sake of consistency the Court will use Section G and Section H on Form 602 in determining whether Plaintiff timely submitted his appeal for third level review. The additional affidavits and declarations both parties provide are simply not credible or rely on questionable assumptions.*fn1 Here, Section G shows that Plaintiff received the results of his second level appeal on December 29, 2004. Section H, signed by Plaintiff, is dated "February 15, 2005" as the date Plaintiff submitted his appeal for third level review. Because Section H shows submission for third level review well past fifteen working days from receipt of his second level results, Plaintiff has not properly exhausted the administrative review process for his first appeal. See Woodford v. Ngo, 548 U.S. 81 (2006) (holding that the exhaustion requirement cannot be met by filing an untimely or otherwise defective administrative grievance or appeal).

Accordingly, the Court ADOPTS the Report, OVERRULES Plaintiff's objections, GRANTS Defendants' motion and DISMISSES Plaintiff's claims arising from grievance RJD-04-979.*fn2 In overruling Plaintiff's objections, the Court also adopts the Report's related fifth and seventh conclusions, that Defendants' motion to dismiss Plaintiff's Eighth Amendment claim on Respondeat Superior grounds and Defendants' motion to dismiss Plaintiff's Monell claim be GRANTED.*fn3

ii. Plaintiff's Second Grievance: RJD-04-1615

Although Defendants's motion does not specifically address Plaintiff's second grievance, the record indicates Plaintiff submitted another grievance alleging lack of proper medical care after Martinez's actions. (Compl. Ex. L.) Like Plaintiff's first grievance, the second grievance was rejected at third level review on the ground that it was not filed within fifteen working days of Plaintiff's receipt of his second level response. (Id. Ex. P.)

The Report found that the California Department of Corrections and Rehabilitation ("CDCR") improperly rejected Plaintiff's third level appeal on timeliness grounds, and concluded that Plaintiff had exhausted his administrative remedies for claims arising from the events undergirding his second grievance. (Report 11--13.) Defendants object, and while they apparently concede that CDCR improperly rejected Plaintiff's appeal, they argue that additional administrative remedies existed to challenge Plaintiff's administrative denial. (Defs.' Objections 3.) Furthermore, Defendants argue, the claims stemming from Plaintiff's second grievance improperly include claims against six Defendants who did not appear in the administrative appeals process. (Id. 4--5.)

As mentioned above the Supreme Court has held that a prisoner acting pro se will be found to have "filed" their notice of appeal the moment the notice is handed over to prison authorities for mailing. Houston, 487 U.S. at 270--72. In this case, Section G on Form 602 indicates that Plaintiff received his second level results on December 16, 2004. (Compl. Ex. L 37.) Section H indicates that Plaintiff submitted his third level appeal on January 6, 2005-thirteen working days later. (Id.) Although Defendant Grannis rejected Plaintiff's third level appeal as untimely under section 3804.6(c), (Compl. Ex. P), the Court finds this rejection erroneous because Plaintiff submitted his appeal for third level review within fifteen working days. Thus, Plaintiff has exhausted the administrative process for his second grievance.*fn4

Although Defendants concede that Grannis improperly screened out Plaintiff's complaint, they argue that Plaintiff could have, and should have, pursued other administrative remedies in addition to the adminstrative procession laid out in Barry, 985 F. Supp. at 1237. (Defs.' Objections 3.) The law does not require as much. Because Plaintiff has attempted to appeal the prison officials' inaction regarding his treatment to every level of the prison grievance system, Plaintiff has not failed to exhaust his administrative remedies. See Barry, 985 F. Supp. at 1237. Defendants have provided no authority to suggest Plaintiff must re-submit his appeal, pursue informal relief, or file an extraordinary writ to perfect this Court's jurisdiction.

Defendants second objection concerns Plaintiff's Eighth Amendment claims against Defendants Hurm, Jones, Ramirez, Reed, Spence and Williams. (Defs.' Objection 4.) Because, Defendants contend, Plaintiff submitted his second grievance against Drs. Jenkins and Ritter only, Plaintiff has failed to exhaust his Eighth Amendment claims against the six Defendants mentioned above. (Id.)

The Court finds Defendants' arguments unconvincing. Although Plaintiff specifically complains of Drs. Jenkin's and Ritter's diagnosis and care, Plaintiff's grievance also generally alleges wholesale dissatisfaction with the prison's response to his medical requests. (Compl. Ex. L. 38.) In doing so, Plaintiff's grievance alleges that each of the six Defendants performed an act or omission which delayed his receiving medical attention. (Id.) The Court refuses to so narrowly read Plaintiff's second grievance as to preclude Eighth Amendment claims against the six Defendants on administrative exhaustion grounds. Simply, Plaintiff's second grievance gave Defendants enough information to be put on notice and an opportunity to take corrective action; this fulfills the purpose of the administrative process. Accordingly, the Court DENIES Defendants' motion to dismiss for failure to exhaust administrative remedies for claims arising out of the second grievance. Because Defendants only object to the Eighth Amendment claims against the six Defendants on exhaustion grounds, the Court ADOPTS the Report, OVERRULES Defendants' objections, and DENIES Defendant's motion to dismiss Plaintiff's Eighth Amendment claim arising out of the second grievance.

IV. CONCLUSION

For the above reasons, and the reasons expressed in the Report and herein incorporated by reference, the Court finds that the Report presents a well-reasoned analysis of the relevant issues. Accordingly, the Court ADOPTS the Report in its entirety, OVERRULES Plaintiff's and Defendants' objections, and GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss. (Doc. Nos. 43, 47, 57.)

Specifically:

1. The Court GRANTS Defendants' Motion to Dismiss Plaintiff's claims against all Defendants sued in their official capacity.

2. The Court GRANTS Defendants' Motion to Dismiss Plaintiff's claims for injunctive relief.

3. The Court GRANTS-IN-PART and DENIES-IN-PART Defendants' Motion to Dismiss Plaintiff's Complaint for failure to exhaust administrative remedies.

4. The Court GRANTS Defendants' Motion to Dismiss Plaintiff's Fourteenth Amendment claim.

5. The Court GRANTS Defendants' Motion to Dismiss Plaintiff's Eighth Amendment Claim on Respondeat Superior grounds.

6. The Court DENIES Defendants' Motion to Dismiss Plaintiff's Eighth Amendment claim.

7. The Court GRANTS Defendants' Motion to Dismiss Plaintiff's Monell claim.

8. The Court GRANTS Defendants' Motion to Dismiss Plaintiff's conspiracy claims.

9. The Court GRANTS Defendants' Motion to Dismiss Plaintiff's state law claims.

10. The Court DENIES Plaintiff's Motion for Summary Judgment. (Doc. No. 43.)

IT IS SO ORDERED.


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