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Brush v. Harper

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 9, 2009

GARY BRUSH, PLAINTIFF,
v.
HARPER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BE GRANTED

(Doc. 59)

OBJECTION DUE WITHIN 30 DAYS

I. Findings

A. Procedural History

Gary Brush ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This is proceeding on Plaintiff's amended complaint, filed June 30, 2008, against defendants Harper, Ortiz, Brummel, Lee, Freeland, Watts, Josso, Tucker, Soares, Rangel, Gonzales, Cano, Greene, Scott, Naftzger, King, and Cattallano ("Defendants"), for alleged retaliation and Eighth Amendment violations.*fn1 On December 18, 2008, pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure, Defendants Naftzger, Soares, Scott, Tucker, and Freeland moved for dismissal of the entire action, and defendants Lee, Jasso, Rangel, Gonzales, and Cano moved for dismissal of some of the claims for failure to exhaust available administrative remedies. (Doc. 59.)

Plaintiff did not file an opposition to Defendants' motion to dismiss.*fn2

B. Motion to Dismiss For Failure to Exhaust Administrative Remedies

1. Legal Standard

Pursuant to the Prison Litigation Reform Act of 1995, "[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." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Chruner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).

Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 127 S.Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust non-judicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.

The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2007). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Id. at § 3084.5. Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 126 S.Ct. 2378, 2383 (2006); McKinney, 311 F.3d at 1199-1201.

2. Retaliation Claim against Lee, and Eighth Amendment claim against Lee and Freeland

Plaintiff's amended complaint is proceeding against Defendants Lee and Freeland for an Eighth Amendment violation, and against Lee for retaliation. (Doc. 24, Findings and Recommendations, 4:2-27.) Plaintiff alleges that Lee assigned a violent cellmate to Plaintiff's cell in retaliation for Plaintiff filing a failure to summon medical attention on August 12, 2005. (Doc. 19, p. 10:24-11:15.) Plaintiff also alleges that he informed Lee and Freeland on numerous occasions that he and his cellmate did not get along, but Lee and Freeland did nothing. (Id.)

Defendants contend that Plaintiff did not file an appeal regarding these claims, and did not exhaust any such appeals at the Director's level. (Doc. 59-2, Exh. A, Herrera Decl., ¶ 6; Exh. B, Grannis Decl., ¶ 9.) Plaintiff filed no opposition.

The Court finds that Defendants have met their burden to show that Plaintiff has failed to exhaust administrative remedies regarding his retaliation claim against Lee and his Eighth Amendment claim against Lee and Freeland.

3. Eighth Amendment Claim Against Jasso, Tucker, Soares, Rangel, Gonzales, and Cano, and Retaliation Claim Against Tucker

Plaintiff alleges that on March 16, 2006, defendant Josso opened Plaintiff's cell door, and that defendants Tucker, Soares, Rangel, Gonzales, and Cano came in and attacked Plaintiff. (Doc. 19, pp. 12-16, ¶¶ 6-11.) Plaintiff alleges that he was kicked and stomped repeatedly. (Id.) Plaintiff alleges that defendant Tucker instigated the attack in retaliation for Plaintiff's litigation activity. (Id. at ¶ 7.)

Defendants contend that Plaintiff did not file an inmate appeal for this incident and did not exhaust any such appeal at the Director's level. (Doc. 59-2, Exh. A, ¶ 6; Exh. B, ¶ 9.) Plaintiff filed no opposition.

The Court finds that Defendants have met their burden to demonstrate that Plaintiff has failed to exhaust administrative remedies regarding his Eighth Amendment claim against Jasso, Tucker, Soares, Rangel, Gonzales, and Cano and his retaliation claim against Tucker.

4. Retaliation Claim Against Naftzger

Plaintiff alleges that on February 4, 2007, defendant Naftzger pushed Plaintiff's wheelchair too quickly, allegedly causing Plaintiff to fall forward from his wheelchair and hit the ground, and that defendant laughed at him. (Doc. 19, pp. 17-18, ¶ 13.) Plaintiff alleges that defendant Naftzger filed a Rules Violation Report blaming Plaintiff for falling out of the wheelchair. (Id.) Plaintiff contends that defendants actions were in retaliation for him filing prison grievances. (Id.)

Defendants contend that Plaintiff did not exhaust his appeal concerning this incident until after he filed his original complaint on July 16, 2007. (Doc. 59-2, Exh. B, ¶ 11.)

"[A]n action is 'brought' for purposes of § 1997e(a) when the complaint is tendered to the district clerk . . . ." Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006) (quoting Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004)). Here, Plaintiff filed his original complaint ion July 16, 2007. (Doc. 1.) Defendants submit evidence that Plaintiff exhausted his administrative remedies regarding this retaliation claim on October 3, 2007. (Doc. 59-2, Exh. B, ¶ 11, and Exh. B-3, pp.24-25.) As stated previously, prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones, 127 S.Ct. at 918-19. The Court finds that Defendants have met their burden to demonstrate that Plaintiff failed to exhaust administrative remedies prior to filing suit for Plaintiff's retaliation claim against defendant Naftzger.

5. Eighth Amendment Claim Against Scott

Plaintiff alleges that on July 2, 2007, defendant Scott threatened Plaintiff with a rules violation if he did not walk to the chow hall. (Doc. 19, pp. 19-20, ¶ 19.) Plaintiff attempted to walk, but fell down. (Id.)

Defendants contend that Plaintiff only exhausted after he filed suit. (Doc. 59-2, Exh. B, ¶ 12.) Defendants submit as evidence Appeal Number PVSP 07-03184 and PVSP 07-01206. (Doc. 59-2, Exh. B-1 and B-2.) Appeal Number PVSP 07-01206 concerns a request for transfer to a medical facility because Plaintiff is wheelchair bound. (Id., Exh. B-1.) Appeal Number PVSP 07-03184 concerns the denial of Plaintiff's wheelchair access and the rules violation reports he received. (Id., Exh. B-2.) Director's level review was not completed until November 13, 2007, and August 20, 2008, respectively. (Id., Exh. B-1 and B-2.) It is unclear whether these appeals concern Plaintiff's allegations against Scott. Even if they do, Plaintiff did not exhaust administrative remedies until after he filed suit as required by law. Jones, 127 S.Ct. at 918-19. Regarding Plaintiff's Eighth Amendment claim against Scott, the Court finds that Defendants have met their burden to show that Plaintiff failed to exhaust administrative remedies prior to filing suit.

II. Recommendations

For the foregoing reasons, the Court HEREBY RECOMMENDS that:

1. Defendants' motion to dismiss for failure to exhaust available administrative remedies, filed on December 18, 2008, should be GRANTED;

2. Defendants Freeland, Scott, Tucker, Soares, and Naftzger should be DISMISSED from this action without prejudice;

3. Plaintiff's claim against defendant Lee for retaliation and failure to protect should be DISMISSED without prejudice; and

4. Plaintiff's claim against defendants Jasso, Rangel, Gonzales, and Cano for excessive force should be DISMISSED without prejudice.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." 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).

IT IS SO ORDERED.


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