IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 5, 2008
DAVID W. WILSON, PLAINTIFF,
OFFICER K. WANN, ET AL., DEFENDANTS.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with an action filed under 42 U.S.C. § 1983. This action is currently proceeding against defendant Wann for claims arising under the First and Eighth Amendments. See October 23, 2007 Order. Defendant has filed a motion to dismiss.
I. "Three Strikes" Dismissal
First, defendant asserts this action should be dismissed under 28 U.S.C. § 1915(g).
Under that statute, an inmate cannot bring an action in forma pauperis if, on three prior occasions and while incarcerated, he or she brought actions in federal court that were dismissed as frivolous, malicious or for failure to state a claim upon which relief can be granted. The information presented by defendant indicates that plaintiff has one case that qualifies as a "strike" under § 1915(g). Def't's Request for Judicial Notice, Ex. A (2003 dismissal as "legally and/or factually patently frivolous."). The other cases identified by defendant had not yet been dismissed before this action was filed. Id., Exs. B, C, D & E. Therefore, plaintiff was not precluded from bringing this action under the in forma pauperis statute when he did so.
II. Dismissal For Failure To Exhaust
Second, defendant asks that this action be dismissed because plaintiff failed to exhaust administrative remedies with respect to his remaining claims prior to bringing this action. A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Id.
The Prison Litigation Reform Act provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). California prison regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a prisoner has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All steps must be completed before a civil rights action is filed, unless a plaintiff demonstrates a step is unavailable to him; exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). Defendant bears the burden of proving plaintiff's failure to exhaust. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied sub nom, Alameida v. Wyatt, 540 U.S. 810 (2003).
In his amended complaint plaintiff, alleges he was denied the right to practice his religion because defendant denied him access to religious materials, including a Bible. He also asserts he was subjected to cruel and unusual punishment because defendant denied plaintiff access to personal items plaintiff requires to maintain his health. Plaintiff alleges he was denied access to these items by defendant on or around February 23, 2006. See Am. Compl. at 18:19-20:4.*fn1
In response to defendant's motion, plaintiff does not dispute defendant's contention that he never obtained a "Director's Level Decision" with respect to any of the claims remaining in this action. Plaintiff suggests that administrative remedies were not available to him due to the actions of prison staff, that he attempted to submit grievances to all the right persons, and that he therefore qualifies for an "exception" to the exhaustion requirement. See Opp'n (docket no. 21) at 5-10.*fn2
The evidence to which plaintiff points in his opposition brief does not support an exception to the exhaustion requirement or the proposition that administrative remedies were not available to him. See id. at 24, 31-35, 49, 53-67, 69-79, 81-91, 95-98 (Exs. 7(f), TA, KW). The record shows plaintiff complained to various people in various ways (often not using official grievance forms), and that he initiated the grievance process with respect to at least some of his claims. Id. Along with many apparently irrelevant exhibits, plaintiff provides a copy of the grievance that coincides most closely with his litigation claims, as an exhibit to his amended complaint. See Am. Compl. at 62-64; Opp'n at 64-66. It appears this grievance was returned to plaintiff initially because, among other things, it contained too many claims involving different subjects, and a second time because he had not attached a required property receipt. Opp'n at 71, 77. Nothing suggests plaintiff could not cure the deficiencies in his submissions, and then resubmit his grievance again at the appropriate level. Plaintiff's apparent position -- that his resorting to letters to the Office of the Inspector General, CDCR's Office of Internal Affairs and the Warden was justified, without further attempting to exhaust -- is unsupported. See Opp'n at 68-69, 77. In particular, nothing indicates plaintiff was foreclosed or relieved from proceeding through all steps in the grievance process. By pointing to the gaps in plaintiff's efforts to properly exhaust, defendant has met his burden.
For all the foregoing reasons, the court will recommend that this action be dismissed for plaintiff's failure to exhaust available administrative remedies with respect to his claims prior to filing suit. Because the court is recommending dismissal, the court need not address the other arguments in favor of dismissal asserted in defendant's motion to dismiss.
III. Requests For Judicial Notice
Both parties have filed several requests for judicial notice. The court may take judicial notice of adjudicative facts not subject to reasonable dispute. See Fed. R. Evid. 201.
The court will grant defendant's January 22, 2008 and February 15, 2008 requests for judicial notice of the fact of dismissal of certain other cases filed by plaintiff, as demonstrated by the court records defendant has provided.
Plaintiff requests judicial notice of all the exhibits attached to his opposition to defendant's motion to dismiss. These exhibits do not satisfy the requirements for the taking of judicial notice. However, to the extent defendant has not objected to certain of the exhibits referenced in these findings, and referenced them in his own filings, the court has relied on them.
IV. Plaintiff's Other Filings
On February 11, 2008, plaintiff filed a second opposition to defendant's motion to dismiss. Defendant asks that the opposition be stricken. The "second" opposition appears to be a duplicate copy of the first, with a complete set of exhibits. Because it does not appear that the "second" opposition reflects any substantive change in plaintiff's arguments, and defendant will not be prejudiced by the court's consideration of the complete exhibits, defendant's motion will be denied. Plaintiff's original opposition, however, will be disregarded.
Plaintiff filed a sur-reply concerning defendant's motion to dismiss on March 3, 2008. Sur-replies are not generally allowed under the Local Rules of this court. See Local Rule 78-230(m). Because plaintiff did not seek leave to file a sur-reply, his sur-reply will be stricken.
Finally, the court notes that plaintiff has filed a motion for a preliminary injunction. It does not appear the motion concerns the actions of defendant Wann or that plaintiff wants the court to order Wann to take some action. Considering these facts, that the court is recommending that this action be dismissed, and nothing in plaintiff's motion suggests the outcome of defendant's motion to dismiss might be different if plaintiff obtained the relief requested, the court will recommend that plaintiff's motion for a preliminary injunction be denied. To the extent plaintiff seeks relief from persons other than defendant Wann, he may not obtain such relief in this lawsuit.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Defendant's January 22, 2008 (#16) request for judicial notice is granted;
2. Plaintiff's February 8, 2008 opposition (#18) is disregarded;
3. Plaintiff's February 11, 2008 (#21) request for judicial notice is denied;
4. Defendant's February 15, 2008 request for judicial notice (#24) is granted;
5. Plaintiff's March 3, 2008 request for judicial notice (#29) is denied;
6. Defendant's motion to strike (#22) is denied; and
7. Plaintiff's sur-replies concerning defendant's motion to dismiss (##27, 28) are stricken from the record.
IT IS HEREBY RECOMMENDED that:
1. Plaintiff's "motion for temporary restraining order" (#32) be denied;
2. Defendant's motion to dismiss (#16) be granted; and
3. This action be dismissed for plaintiff's failure to exhaust administrative remedies with respect to his claims prior to filing suit.
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).