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Burrows v. Gifford

September 12, 2008

ELDON BURROWS, PLAINTIFF,
v.
SERGEANT GIFFORD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1). Pending before the court is Defendants' motion to dismiss. Plaintiff has opposed the motion.

This action proceeds on the original complaint. Plaintiff, an inmate in the custody of the California Department of Corrections at Wasco State Prison, brings this civil rights action against defendant correctional officials employed by the Department of Corrections at Wasco State Prison. Plaintiff names the following individual defendants: Sergeant Gifford; Correctional Officer Cera; Correctional Officer Macias.

Plaintiff's sole claim in this complaint is that he was injured as a result of a dangerous condition. Plaintiff is a diabetic inmate and has been on dialysis for approximately 14 months. Three times a week, Plaintiff is transported to a hospital in Bakersfield for dialysis treatment. On May 3, 2005, upon arrival at the clinic in Bakersfield, Officer Macias pulled out the step on the van, stepped on to the curb, and directed Plaintiff to exit the van. Plaintiff was shacked with handcuffs and leg irons. Plaintiff alleges that "because of a broken step." he fall face forward into the road, injuring himself. Plaintiff alleges that the step had been broken for some time, and Defendants knew of the condition, as the dialysis patients had complained of it.

Defendants move to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b) for Plaintiff's failure to exhaust his available administrative remedies prior to filing suit. The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution. . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

Section 7 of The Prison Litigation Reform Act was amended to read as follows:

(a) APPLICABILITY OF ADMINISTRATIVE REMEDIES. No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (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). In Booth v. Churner,532 U.S. 731 (2001).

The Supreme Court, in addressing the question of whether a prisoner need exhaust available remedies when monetary damages are unavailable, held that "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Id. at 1821. In order to bring his claim in federal court, plaintiff must completely exhaust his available administrative remedies. In California, there are four levels of review - informal level, first formal level, second formal level, and third formal level. The third formal level constitutes the Director's decision on appeal. Cal. Code Regs. Tit. 15, § 3084.5(e)(2).

Defendants support their motion with the declaration of Andrew S. Altnow, a Correctional Counselor II and Administrative Segregation Specialist at CSP Corcoran. Mr. Altnow declares that on May 12, 2005, Plaintiff filed a CDC 602 to be answered at the informal level by the Transportation Office regarding a broken step. The step was repaired, but compensation was not granted as Plaintiff had indicated to Officer Cera that he had fallen because he had gotten his chain tangled up. Altnow Decl., ¶ 7.

Mr. Altnow further declares that Plaintiff did not respond to the informal review until June 2005, thereby exceeding time constraints. Mr. Altnow makes the conclusory statement that Plaintiff failed to satisfy the exhaustion requirement regarding his claim. Id.,¶ 8. Mr. Altnow attaches as Exhibit A, a copy of the inmate grievance at issue, log no. WSP-A-05-00804. This exhibit indicates that the appeal was granted, but compensation was denied.

Defendants argue that Plaintiff filed a grievance and failed to timely pursue it to the final level of review. In his opposition, Plaintiff argues that the time limits were met. Plaintiff indicates that he filed his grievance on May 5, 2005, "and then the time limit ran out for them to give me an answer so I started writing letters to appeals coordinator Mr. Altnow inquiring about my 602 and I got no response from his office so I wrote the Warden a letter Ms. Vasquez asking her why the appeals coordinator wouldn't see Exhibit B respond to letters inquiring about a 602's whereabouts."

Defendants' Exhibit A includes the written response to Plaintiff's grievance, indicating that the grievance was granted insofar as the step has been repaired. The grievance was denied in part because Plaintiff was denied compensation. On the same for, Plaintiff indicates that he is dissatisfied. Specifically, Plaintiff indicates, as the formal level, that "I'm asking to be compensated in the amount of 1,000,000 for pain, suffering and emotional distress which continues to this date." The grievance was denied at the informal level on May ...


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