UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 14, 2009
KEITH BLACKWELL, PLAINTIFF,
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS ESCOBARA, PENNYWELL, MCGREW, AND LAWHORN'S MOTION TO DISMISS FOR FAILURE TO EXHAUST BE DENIED, WITHOUT PREJUDICE (Doc. 161) OBJECTIONS DUE WITHIN FIFTEEN DAYS
Defendants' Motion to Dismiss for Failure to Exhaust
Plaintiff Keith Blackwell, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 20, 2005. The action is proceeding on Plaintiff's second amended complaint, filed July 5, 2007, against Defendants Vo, Escobara, Pennywell, McGrew, and Lawhorn for acting with deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment of the United States Constitution.
On May 29, 2009, Defendants Escobara, Pennywell, McGrew, and Lawhorn filed a motion to dismiss for failure to exhaust, pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b).*fn1 Plaintiff filed an opposition on July 2, 2009, and Defendants filed a reply on July 8, 2009.*fn2 Local Rule 78-230(m).
II. Service of Motion
In addition to opposing Defendants' motion on the merits, Plaintiff argues that the Court should not consider the motion because it was not served on him at his address of record and was instead forwarded to him by his parole officer.
The record reflects, and Defendants' acknowledge, that Plaintiff notified the Court and Defendants of his current address of record in December 2008. (Doc. 138.) Defendants served their motion on Plaintiff on May 29, 2009, at the California Correctional Institution, his former address. Plaintiff received the motion on June 25, 2009, via his parole officer, and filed his opposition.
Defendants' service error is not grounds for blanket rejection of their motion. Service of a motion at a prior address is not entitled to any presumption of delivery, see Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1010 (9th Cir. 2003), and had the Court or Plaintiff become aware of non-service of the motion, the remedy would have been re-service. In this instance, however, Plaintiff acknowledged receipt of the motion via his parole agent and Plaintiff filed an opposition, negating the need for re-service. Therefore, Plaintiff's request for rejection of the motion based on the service error is denied.
III. Exhaustion Requirement
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."*fn3 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 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. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (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. 1998) (per curium)). 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.
On October 24, 2004, Plaintiff was transferred to Avenal State Prison. (Doc. 1, Comp., ¶5.) Plaintiff suffers from chronic obstructive pulmonary disease (COPD), and between November 2004 and June 2005, non-parties Dr. Rees and Dr. Harrison documented Plaintiff's need for a medical transfer from Avenal because the area's air quality worsened Plaintiff's COPD. (Id., ¶¶1, 6.) Plaintiff's Eighth Amendment claim against Defendants Escobara, Pennywell, McGrew, and Lawhorn, members of the Classification Unit Committee at Avenal, arises from their alleged failure between November 2004 and June 2005 to effect his medical transfer from Avenal. (Id., ¶7.)
Defendants move for dismissal of the claim against them on the ground that Plaintiff did not exhaust. Defendants argue that a final decision from the Director's Level of review satisfies the exhaustion requirement, and submit evidence that of the five appeals Plaintiff submitted to the Director's Level, only four were exhausted prior to the date this action was filed and none of the four grieved the claim against them. (Doc. 161-2, Motion, Grannis Dec., ¶¶6-12.)
The California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2009). 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, 548 U.S. 81, 85-86, 126 S.Ct. 2378 (2006); McKinney, 311 F.3d at 1199-1201. However, the failure to obtain a Director's Level decision does not necessarily mean that exhaustion did not occur at a lower level in the process. Marella v. Terhune, 562 F.3d 983, 985-86 (9th Cir. 2009) (further pursuit of a grievance not required if no further relief available); Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005) ("[A] prisoner need not press on to exhaust further levels of review once he has either received all 'available' remedies at an intermediate level or has been reliably informed by an administrator that no remedies are available.").
Defendants did not submit any evidence demonstrating that Plaintiff either failed to file a grievance at all or filed a grievance but failed to pursue it to the Director's Level, where further relief was available. As a result, the Court finds that Defendants have not demonstrated Plaintiff failed to exhaust his claim against them, and are not entitled to dismissal.*fn4
V. Conclusion and Recommendation
Because Defendants did not meet their burden of demonstrating that Plaintiff failed to exhaust his claim against them, the Court RECOMMENDS Defendants' motion to dismiss, filed May 29, 2009, be DENIED, 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)(l). Within fifteen (15) 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.