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Cohea v. Pliler

March 13, 2009

DANNY JAMES COHEA, PLAINTIFF,
v.
CHERYL K. PLILER, WARDEN, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This action proceeds on the November 30, 2006 third amended complaint in which plaintiff asserts claims of retaliation by the defendants for purported incidents that occurred at California State Prison, Sacramento from 1995 to 2001. Defendants move to dismiss the claims against defendants Flory, Hill, Kelly, Rosario, Saunders, Scogin, Sims and White, on the ground that plaintiff failed to exhaust available administrative remedies. See 42 U.S.C. § 1997e(a). For the reasons stated below, the court finds that defendants' motion must be granted.

Also before the court are plaintiff's December 21, 2007, December 28, 2007, February 11, 2008 and February 25, 2008 filings, wherein he requests various forms of relief. For the reasons explained below, the court finds that plaintiff is not entitled to the relief he seeks.

I. Motion to Dismiss

A. Procedural History

Plaintiff commenced this action on December 27, 2000. He claimed that defendant Pliler, the warden at Folsom Prison, had so limited plaintiff's access to the law library that he forfeited claims of actual innocence in his habeas proceedings and that he feared retaliation for asserting his rights. On March 21, 2002, the court dismissed plaintiff's complaint with leave to amend on the grounds that plaintiff had not alleged that a particular restriction caused an actual injury to his right of access to the courts and that his claim of retaliation was speculative.

On May 28, 2002, plaintiff filed a request to file a supplemental complaint. He alleged that defendant Pliler and her chief deputy warden, Rosario, retaliated against plaintiff for exercising his federal constitutional right of access to the courts by causing their agents to make false criminal charges against plaintiff and to separate plaintiff from prisoners he assisted in exercising the same right. On November 20, 2002, the court ruled that plaintiff had not cured the deficiencies identified in its March 21, 2002 order, and granted plaintiff leave to file an amended complaint.

Plaintiff then filed an amended complaint on March 25, 2003. That complaint was dismissed, with leave to amend, on May 2, 2003 because it did not comply with the Federal Rules of Civil Procedure. Nor did it comply with the court's order of November 20, 2002.

On July 11, 2003, plaintiff filed a second amended complaint naming 20 defendants. On August 27, 2003, the court found that pleading sufficient for the limited purposes of screening under 28 U.S.C. § 1915A(b). However, upon defendants' motion for summary judgment the court, on March 8, 2006, recommended that defendant Pliler be dismissed for failure to state a claim and defendant Adcock be dismissed for failure to exhaust.*fn1 Those findings and recommendations were adopted on March 31, 2006. The court also granted plaintiff leave to amend his "conspiracy" claims.*fn2

On November 30, 2006, plaintiff filed a third amended complaint.*fn3 That complaint alleges in part, that defendants Flory, Hill, Kelly, Rosario, Saunders, Scogin, Sims and White retaliated against plaintiff in January of 2001 for his filing of numerous administrative grievances. On December 20, 2007, defendants filed the instant motion to dismiss.*fn4

B. Legal Standard

Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[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). This requirement is mandatory and unequivocal. Booth v. Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) ("Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to suit." (citation omitted)). A prisoner seeking leave to proceed in forma pauperis in an action challenging the conditions of his confinement brings an action for purposes of 42 U.S.C. § 1997e when he submits his complaint to the court. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Therefore, a prisoner must exhaust available administrative remedies before filing any papers in federal court and is not entitled to a stay of judicial proceedings in order to exhaust. Id. at 1051; McKinney, 311 F.3d 1198.

The United States Supreme Court stated in Jones v. Bock, 549 U.S. 199, 215-16 (2007), that failure to exhaust under the PLRA is an affirmative defense and that if the affirmative defense can be decided on the complaint alone, a motion under Rule 12(b)(6) is appropriate. The Court explained:

A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim ...


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