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Lay v. Marrow


July 30, 2008


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Plaintiff, a prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are 1) motion to dismiss, filed on 2/14/08, by defendants Marrow, Dean, Tinseth, Roblez, Heintschel, Long, Neis (incorrectly named "Neil") and Williams, to which plaintiff filed an opposition on 3/03/08, after which defendants filed a reply on 3/07/08; 2) defendant Woodard's motion to join defendants' motion to dismiss, filed on 3/06/08, which request, although plaintiff filed his opposition on 3/14/08,*fn2 is hereby granted; 3) plaintiff's request for leave to file a second amended complaint and proposed second amended complaint, filed on 4/23/08.

First Amended Complaint

The gravamen of plaintiff's allegations against defendants is that he was subjected to an excessive use of force in violation of his rights under the Eighth Amendment during an unnecessary cell extraction by defendants Morrow, Dean, Tinseth and Roblez, acting under the supervision of defendants Long, Heintschel and Neis, on 10/25/05, resulting in serious physical injuries to plaintiff. Amended Complaint (AC), pp. 2, 4-19,*fn3 filed on 9/20/07.*fn4 He also claims to have been subjected to deliberate indifference to his serious medical needs and a conspiracy to cover up constitutional violations in violation of the Eighth and Fourteenth Amendments. AC, p. 2.

At about 10:00 a.m. on 10/25/05, defendant Long asked plaintiff to "cuff up" so water in plaintiff's cell could be cleaned up. When plaintiff objected, defendant Long warned plaintiff if he refused he would be pepper-sprayed; plaintiff nevertheless continued to refuse and defendant Long left. About 15 minutes later, defendant Long returned with defendant Heintschel, shaking cans of pepper spray; defendant Long opened the food port and sprayed a can of pepper spray through the food port of plaintiff's cell and then closed the door. Five minutes later, more cans of pepper spray were "shot into his cell." Breathing became unbearable, so plaintiff breathed through a hole in the back window of his cell. With his back to the cell door, plaintiff heard a booming sound followed by another and felt something hit the right side of his head and lost consciousness. AC, p. 5.

Plaintiff contends that when he regained consciousness he was being struck by feet and fists although he offered no resistance. He was handcuffed, shackled, dragged from his cell by the leg shackles' chain, forced to stand and walk by defendants' Morrow and Dean even though he complained of the tight shackles causing him great pain. Plaintiff was not put on the gurney for the decontamination shower until defendants Morrow and Dean, after Morrow had looked back and yelled for plaintiff to "stop resisting," had forcefully slammed his face into the 6-blocks' door frame which "busted" his jaw open. Although non-defendant M.T.A. Schiller ordered that plaintiff be taken to the emergency room, defendants Morrow and Dean threw plaintiff head first into the shower by the leg irons and handcuffs, where plaintiff remained from 11:00 a.m. until 4:15 p.m. with the shackles and cuffs so tight "he lost all feeling in his hands and feet." AC, p. 6.

Defendant Pazos came to the decontamination shower and asked if plaintiff had injuries at 11:45 a.m., but even though plaintiff showed Pazos his injuries, included the laceration on his jaw, and described what had happened, defendant Pazos walked away doing nothing. AC, pp. 7, 15. Plaintiff states that he did not see non-defendant R.N. D. Klith or receive any medical treatment from her that day. At 4:15 p.m. on 10/25/05, non-defendant C/O Dunkle loosened plaintiff's leg irons and handcuffs and escorted plaintiff to the emergency room where defendant Williams wiped some of the blood off the plaintiff's jaw laceration for photographs by Dunkle, but she failed to treat, clean or close the laceration or check to determine if the jaw had been fractured or if plaintiff had a concussion; nor did she call a doctor. Plaintiff was taken to the holding cell until 6:30 or 7:00 p.m., then returned to the cell that was still contaminated with pepper spray. AC, pp. 7, 17-18.

Plaintiff claims that defendant Heintschel had nodded to defendant Morrow indicating that the video camera was turned off before defendant Morrow slammed his face into the door frame. AC, pp. 8, 14. Plaintiff contends that defendants Roblez and Tinseth acted with defendants Morrow and Dean in attacking him while he lay unresisting on the floor. AC, pp. 8. Defendants Dean and Tinseth kicked plaintiff multiple times while he lay helpless. AC, pp. 8-9. In addition, defendant Roblez had shot the 40 mm twice, one time causing a rubber block to strike plaintiff in the side of the head rendering plaintiff unconscious. AC, p. 10. Defendant Woodard failed to video record what occurred in the cell and turned the video camera off before plaintiff was slammed into the door frame. AC, pp. 12-13. Defendant Heintschel provided false information to defendant Nies for the use of force authorization; defendant Long authorized the use of unnecessary force and defendants Long and Heintschel stood in the doorway to block the video camera from recording the assault in plaintiff's cell. AC, pp. 14-15. Defendant Morrow filed a false report on what occurred, subjecting plaintiff to disciplinary action and possibility of felony charged for attempted battery on staff. AC, p. 9. Defendants Tinseth, Heintschel and Pazos, also filed a false report; defendant Dean filed a false CDC Rule 115 rule violation report. AC, pp. 10-11, 15-16. Defendant Nies authorized the excessive use of force, failed to ensure compliance with cell extraction procedures, and failed in his duty to protect plaintiff. AC, pp. 18-19. Defendants violated his Eighth and Fourteenth Amendment rights for which plaintiff seeks money damages. AC, pp. 2, 21.

Motion to Dismiss

Defendants move for dismissal under non-enumerated Fed. R. Civ. P. 12(b) alleging a failure to exhaust administrative remedies properly. Motion to Dismiss (MTD), pp. 1-2. Defendants move for dismissal of defendants Marrow, Dean, Tinseth, Roblez, Heintschel, Long and Neis. By defendant Woodard's subsequent joinder, dismissal of this defendant is also sought. As to defendant Pazos, the court has separately recommended dismissal of this defendant. Defendants seek to limit defendant's lawsuit against defendant Williams to a claim of deliberate indifference to serious medical needs on 10/25/05. Id.

Legal Standard under Non-Enumerated Fed.R.Civ.P. 12(b)

In a motion to dismiss for failure to exhaust administrative remedies under non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure, defendants "have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The parties may go outside the pleadings, submitting affidavits or declarations under penalty of perjury, but plaintiff must be provided with notice of his opportunity to develop a record. Wyatt v. Terhune, 315 F.3d at 1120 n.14. The court provided plaintiff with such fair notice by Order, filed on 11/09/07.

Should defendants submit declarations and/or other documentation demonstrating an absence of exhaustion, making a prima facie showing, plaintiff must refute that showing. Plaintiff may rely upon statements made under the penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court's attention those parts of the complaint upon which plaintiff relies. If the court determines that plaintiff has failed to exhaust, dismissal without prejudice is the appropriate remedy for non-exhaustion of administrative remedies. Wyatt v. Terhune, 315 F.3d at 1120.

PLRA Requirements

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) provides 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." Inmates seeking injunctive relief must exhaust administrative remedies. Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999). In Booth v. Churner, 532 U.S. 731,741, 121 S.Ct. 1819, 1825 (2001), the Supreme Court held that inmates must exhaust administrative remedies, regardless of the relief offered through administrative procedures. Therefore, inmates seeking money damages must also completely exhaust their administrative remedies. Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819 (inmates seeking money damages are required to exhaust administrative remedies even where the grievance process does not permit awards of money damages). The United States Supreme Court has held that exhaustion of administrative remedies under the PLRA requires that the prisoner complete the administrative review process in accordance with the applicable procedural rules. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378 (2006). Thus, in the context of the applicable PLRA § 1997e(a) exhaustion requirement, any question as to whether a procedural default may be found should a prisoner plaintiff fail to comply with the procedural rules of a prison's grievance system has been resolved: the PLRA exhaustion requirement can only be satisfied by "proper exhaustion of administrative remedies....," which means that a prisoner cannot satisfy the requirement "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Woodford v. Ngo, supra, at 84, 126 S.Ct. at 2382. Moreover, 42 U.S.C. § 1997e(a) provides that no action shall be brought with respect to prison conditions until such administrative remedies as are available are exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002).

Administrative Exhaustion Procedure

In order for California prisoners to exhaust administrative remedies, they 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. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. xv, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement. Id. at 1237-38.

However, if the subject of the prisoner's complaint is a "staff complaint," such does not proceed through the ususal grievance procedures. The remedy for such a complaint is that CDCR initiate an investigation. An inmate can receive no other relief at that time regarding the staff complaint. Brown v. Valoff, 422 F.2d 926, 937-938 (9th Cir. 2005) (not cited in defendants' motion). If relief other than is available for a staff complaint is sought, e.g., be housed in protective custody, be single celled etc., then the regular three level appeal process must be exhausted as for that relief. Id at 938. Importantly for this motion, if on a staff complaint, a request is granted or partially granted, i.e., an investigation is ordered, the inmate has exhausted all available remedies for the staff complaint. Id. at 937-938.*fn5 If misconduct on the part of staff is found, only CDCR has the authority to impose punishment, i.e., an inmate does not proceed in an adversarial fashion to determine the punishment. If the charge of misconduct is not sustained, the matter ends. Thus, for allegations of staff misconduct, there is nothing a prisoner can do in either event past being awarded an investigation "remedy."


Defendants contend that plaintiff filed, with respect to the 10/25/05 incident, four inmate administrative grievances accepted by the Inmate Appeals Branch, and one inmate appeal that was submitted three times but screened out and rejected. MTD, pp. 4-5. In appeal no. 05-02082, plaintiff alleged improper medical care by defendant Williams related the 10/25/05 cell extraction. MTD, p. 5, Exhibit (Exh.) A, ¶ 4, Declaration of N. Grannis, Chief of the Inmate Appeals Branch, & Exh. B, grievance 05-02082, re: defendant Williams through third level. However, defendants aver, only in inmate appeal no. 05-02184 (IAB nos. 5019103 & 5032039), did plaintiff detail the alleged injuries of the 10/25/05 cell extraction, contending "he was subjected to excessive force, injury assault and conspiracy by correctional staff." MTD, p. 5, Exh. C, appeal no. 05-02184, filed on 11/08/05, through the "partially granted" second level response. Defendants argue that this appeal was first rejected at the director's level on 2/23/06 as "untimely by over two months" because CAL. CODE REGS. tit.xv, § 3084.6(c) requires that an appeal be submitted by an inmate to the next level of review within 15 days of receipt of a response, dated 12/15/05. MTD, p. 5, Exh. A, Grannis Dec., ¶¶ 4, 6. When plaintiff resubmitted appeal no. 08-02184 on 10/18/06, it was again rejected as untimely, and on his third submission of the same appeal, on 12/28/06, the IAB informed plaintiff that the appeal was not accepted at the director's level. Id. Thus, this appeal, according to defendants, was never properly exhausted through the third level. MTD, p. 5.

In appeal no. 06-00121 (IAB no. 0509558), signed by plaintiff on 12/12/05, plaintiff alleged that he "was inappropriately found guilty" of attempted battery on a peace officer, a charge arising from the incident of 10/25/05. MTD, p. Exh. D. In the appeal, plaintiff complains that the preponderance of the evidence does not substantiate the charge and that he was denied his due process rights related to the hearing procedures. Exh. D. In an attachment to the appeal, plaintiff does complain, inter alia, that the videotape of the incident does not show whether he resisted or not because defendants Long and Heintschel blocked the camera view, that there was a cover-up once the officers entered the cell, that at some point he sustained a jaw laceration and that the evidence demonstrated that excessive force was used against him, resulting in his alleged serious injuries. Id. Plaintiff concludes that he is, therefore, not guilty of attempted battery on a peace officer, and the RVR should be dismissed. Id. Although defendants concede that plaintiff refers to the 10/25/05 incident, they contend that the references therein are "merely for peripheral background information" and plaintiff's principal grievance is the supposed "mishandling and adjudication" of the RVR at the 11/24/05 hearing. MTD, p. 5, Exh. A, Grannis Dec. ¶ 7. Defendants state that the IAB review was "appropriately limited" to the due process violation allegations. Id., & Exh. D. Defendants further contend that if plaintiff's intent had been to complain of excessive force arising from the incident that it would have been untimely as filed more than seven months after the incident. MTD, p. 5. As to this contention, however, the court notes that this grievance appears to have been initiated on 12/12/05 or thereabouts which, while not within the 15-working-days prison administrative appeal filing limit of the 10/25/05 incident, is less than two months, not more than seven months beyond that date.

That grievance does appear to be closer to the apparent RVR hearing date. In any case, defendants' contention that the grievance at that point relating to the excessive force claims would have been untimely in the prison grievance process is not of itself a persuasive argument in this court, what is germane is how the prison appeal was framed and construed.

In appeal no. 06-01209 (IAB no. 0609488), wherein plaintiff complains that custody and medical staff were removing medical records from his Unit Health Records in an attempted cover-up of the 10/25/05 incident, defendants again concede that plaintiff references the incident, but that the references once again are "peripheral background information" and that the IAB review appropriately was limited to the staff misconduct allegations related to the record removal. MTD, p. 6, Exh. A, Grannis Dec., ¶¶ 4, 8 & Exh. E. The court's review of the grievance establishes that its focus is an allegation of staff misconduct arising from purported stealing or destruction of documents that were discovered as missing on 5/8/06, although plaintiff does contend that the "misconduct" is related a cover-up of "police brutality on 10/25/05..." Defendants again aver that this appeal cannot be treated as an excessive force complaint and if that were plaintiff's intent he would have been late by more than seven months. MTD, p. 6. While in this instance, defendants' assessment of the tardiness with respect to any excessive force complaint arising from the 10/25/05 incident appears to be accurate, this part of defendants' argument would be relevant only if the grievance had been so construed and the appeal found untimely on that basis as the court will not make a finding based on speculative claims of whether or not prison appeal time limits might have been exceeded.

Finally, in appeal no. 06-00814 (IAB no. 0611629), plaintiff filed a grievance complaining of not being permitted to review and copy his medical records. MTD, p. 6, Exh. A, Grannis Dec., ¶¶ 4, 9. Defendants acknowledge that plaintiff was seeking medical records from 10/25/05 and 10/26/06 but had not received the records. Exh. A, ¶ 9.

Defendants cite Woodford v. Ngo, supra, 126 S.Ct. at 2385, for the proposition that proper exhaustion requires adherence to the deadlines for proceeding through all levels of review and maintain that only appeal no. 05-02184, which was not submitted for third level review until two months after the second level decision, addressed plaintiff's claims of excessive force, injury, assault and conspiracy raised herein, and thus the claims were not properly exhausted. MTD, pp. 6-7.

In opposition,*fn6 plaintiff contends that his first level grievance in appeal no. 05-02184, resulted in the promise of an investigation of his claims and thereby satisfied the exhaustion requirement. Opposition (Opp.), pp. 1-2. Plaintiff includes the second level reviewer response to that appeal as Exh. A (pp. 17-18). (Defendants also include the response as part of their Exh. C to MTD.) The second level review response makes quite clear that that grievance directly addressed the allegations raised herein:

You contend that on October 25, 2005, excessive and unnecessary force was used on you resulting in serious injury in violation of California Penal Code -245(A)(1) and that officers have conspired to "cover-up" the violent assault on you. You claim that officers shot you in the head with a 37 MM weapon causing you to lose consciousness. When you claim to have awoken fists and feet were striking you in the head, back, neck and left leg. You claim to have heard officers yelling, "Where are the fucking handcuffs". As you were escorted out of 6-block, Correctional Officer (C/O) R. Morrow told you to stop resisting, then ran your face into the doorframe that resulted in serious injury (laceration) to your jaw. You allege to have been thrown head first into the decontamination shower by C/Os Morrow and C. Dean resulting in neck injuries. Furthermore you claim officers manipulated the video camera prior to the violent assault on you. You assert the assaults are premeditated and carried out by veteran officers maliciously to cause serious or fatal injury. You claim to have received injuries to your jaw, left leg, ankle, neck, middle back, head, wrists, forearms and right foot as a direct result of C/Os Morrow, Dean and J. Tinseths' premeditated assault on you while they were under the supervision of Correctional Sergeant M. Long, Correctional Lieutenant C. Heintschal [sic] and Facility Captain G. Nies. You request this complaint be forwarded to the Sacramento District Attorney Office for possible prosecution, that all staff and inmates be interviewed who were in C-Section at the time of the incident and that you be given a polygraph examination.

Opp., Exh. A, p. 16, MTD, Exh. C, p. 17.

The second level review included a decision showing the appeal was partially granted:

Your appeal is partially granted in that your allegations of staff misconduct have been referred to the Associate Warden of A Facility for a review. You will be interviewed during this process. Pursuant to state law, the results of any staff review shall not be released to the public, inmates, parolees, or other staff. However, you will be notified when the review has concluded and whether your allegations were or were not sustained.

Be advised that although you have the right to submit an appeal as a staff complaint, the request for administrative action against staff is beyond the scope of the departmental appeals process. In addition, no reprisal is taken against any inmate for filing an appeal.

Opp., Exh. A, p. 17, MTD, Exh. C, p. 18.

Plaintiff maintains that, after the appeal was bypassed at the first level, it was partially granted at the second level on 12/19/05. Plaintiff includes in his Exh. A a portion of the appeal and response that defendants do not include in their Exh. C.


The exhaustion question here is directly controlled by Brown v. Valoff. Plaintiff was granted an investigation (the only relief available) and was expressly told that the Director, or third level of appeal could do no more for plaintiff in regards to his complaint against staff. As such plaintiff's excessive force claim was exhausted, and there was nothing else plaintiff had to perform. Defense counsel could have saved much time by recognizing the on point Ninth Circuit authority regarding exhaustion of complaints against staff for misconduct.

Accordingly, IT IS ORDERED: 1. The Clerk is to correct the spelling of the names of defendant "Morrow" to "Marrow," defendant "Heintchel" to "Heintschel," and defendant "Neil" to "Neis" in the court's docket;

2. Defendant Woodard's 3/06/08 (# 21) request to join the motion to dismiss is granted.


1. Defendants' motion to dismiss, filed on 2/14/08 (# 18) be denied;

2. Plaintiff's motion for leave to file a second amended complaint, filed on 4/23/08 (# 27) be granted; and

3. This matter also proceed as to plaintiff's claims of deliberate indifference to serious medical needs against defendant Williams from whom an answer must be filed within thirty days of adoption of these findings and recommendations, should that occur.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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