IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 5, 2009
PHILLIP ROSENBLUM, PLAINTIFF,
MULE CREEK STATE PRISON MEDICAL OFFICIALS, ET AL., DEFENDANTS.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On November 3, 2008, defendants moved to dismiss this action, arguing that plaintiff failed to exhaust available administrative remedies prior to bringing suit. Plaintiff has filed an opposition, and defendants have filed a reply.
Plaintiff is proceeding on an amended complaint against defendants Akintola, Galloway, Milliman, Pham, and Williams. Therein, plaintiff alleges that he suffers from a circulatory disorder that started while he was incarcerated at the California State Prison at Wasco sometime in 2004. Plaintiff also alleges that beginning sometime in 2002 he began to suffer from a neurological disorder called tardive dyskinesia caused by prescribed psychiatric medication. Plaintiff alleges that he experiences various symptoms as a result of these disorders, including muscle spasms, twitching, numbness, high blood pressure, protruding veins, and heart palpitations. Plaintiff claims that the defendants have denied him adequate medical care in violation of the Eighth Amendment and requests monetary damages. (Am. Compl. at 5 & Attach. 1-39.)
DEFENDANTS' MOTION TO DISMISS
I. Defendants' Motion
Counsel for defendants argues that the court should dismiss this action because plaintiff failed to exhaust administrative remedies prior to filing this suit. Counsel argues that plaintiff filed only a single inmate appeal prior to filing this action, designated as WSP-04-00917, in which he requested additional diagnosis of and treatment for tardive dyskinesia. According to defense counsel, however, plaintiff did not allege in his appeal that the defendants provided him with inadequate medical care or that they were deliberately indifferent to his medical needs as he does in his civil rights complaint in this action. (Defs.' Mot. to Dismiss at 2-6, Escalante Decl., Wilson Decl. & Grannis Decl.)
Defense counsel also argues that plaintiff did not pursue WSP-04-00917 beyond the second level of review. Defendants acknowledge that plaintiff attempted to file the appeal at the director's level of review, but the director's level of review screened out the appeal because plaintiff failed to include supporting documents. Plaintiff never re-submitted the appeal with the requested documents. Accordingly, counsel for defendants concludes that plaintiff failed to properly exhaust his administrative remedies. (Defs.' Mot. to Dismiss at 6 & Grannis Decl.)
II. Plaintiff's Opposition
In opposition to defendants' motion to dismiss, plaintiff argues that he has exhausted his administrative remedies. Specifically, plaintiff argues that he pursued his grievance, WSP-04-00917, through the first two levels of review to the director's level of review but that the latter screened out his appeal as incomplete and missing supporting documents. Plaintiff acknowledges that he did not re-submit the appeal with the requested documents, but argues that he was only required to make a reasonable attempt to exhaust his claims. Plaintiff also argues that the director's level decision to screen out his appeal was improper because the missing documents were unnecessary to a final determination of his appeal. In this regard, plaintiff contends that the director's level of review requested a copy of his Reception Center Medical Chrono, but that chrono does not mention anything about his medical complaints and could not have contributed to consideration of the merits of his appeal. Similarly, plaintiff asserts that the director's level of review requested a Mental Health Placement Form that does not mention anything about his medical complaints and was therefore irrelevant. Moreover, plaintiff contends that prison regulations do not require him to file the additional documents the director's level requested. Finally, plaintiff argues that he would not have been able to timely re-submit his inmate appeal to the director's level of review within the required 15 days in any event because prison policy allows medical staff up to 60 days to respond to an inmate's request for copies of his medical file. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 1-7 & Ex. B.)
Plaintiff also argues that his grievance, WSP-04-00917, included sufficient detail to alert prison officials to the nature of the wrong for which he sought redress. Plaintiff argues that his grievance included a description of the symptoms he was experiencing and explained that he was not receiving adequate medical treatment. In addition, plaintiff contends that as he pursued the appeal he included further details about the inadequacy of his medical care and named medical officials, including defendant Pham, who were not providing him with adequate medical care. Plaintiff concludes that he included sufficient information in the appeal for prison officials to take responsive action. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 8-12 & 16.)*fn1
III. Defendants' Reply
In reply, defendants argue that a prisoner is required to submit supporting documents to clarify the issues presented in an inmate appeal. In addition, defendants argue that plaintiff's belief that the documents the director's level of review requested were irrelevant does not excuse him from pursuing his grievance, WSP-04-00917, through the director's level of review. In this regard, counsel contends that plaintiff had administrative remedies available to him, but he simply chose not to pursue them. (Defs.' Reply at 2-3.)
Defendants also argue that plaintiff's grievance did not place any defendant on notice of his constitutional claims. In this regard, they contend that plaintiff did not name any defendants in his appeal, and although he asked for additional tests and examinations from the California Department of Corrections and Rehabilitation, he did not claim that any medical staff was deliberately indifferent to his serious medical needs until after the informal level of review. (Defs.' Reply at 3.)
Finally, defense counsel argues that plaintiff did not properly exhaust any of his other screened out grievances prior to filing this action. Counsel also argues that plaintiff's correspondence with the warden of his institution cannot serve to satisfy the exhaustion requirement. (Defs.' Reply at 3-5.)
I. Legal Standards Applicable to a Motion to Dismiss Pursuant to Non-Enumerated
Rule 12(b) By the Prison Litigation Reform Act of 1995 ("PLRA"), Congress amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The United States Supreme Court has ruled that exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. Id. at 741 n.6. Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 90-93 (2006).
In California, prisoners may appeal "any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Most appeals progress from an informal review through three formal levels of review. See Cal. Code Regs. tit. 15, § 3084.5. A decision at the third formal level, also referred to as the director's level, is not appealable and will conclude a prisoner's administrative remedy. Cal. Code Regs. tit. 15, §§ 3084.1(a) and 3084.5(e)(2). A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available before filing suit. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).
The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative defense that a defendant may raise in a non-enumerated Rule 12(b) motion. See Jones v. Bock, 549 U.S.199, 216 (2007) ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints."); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003). The defendants bear the burden of raising and proving the absence of exhaustion. Wyatt , 315 F.3d at 1119. "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. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust--a procedure closely analogous to summary judgment--then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record."*fn2 Id. at 1120 n.14. When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120. See also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005), cert. denied 549 U.S. 1204 (2007). On the other hand, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
A prisoner's concession to nonexhaustion is a valid ground for dismissal of an action. See Wyatt, 315 F.3d at 1120. In this case, plaintiff acknowledges that although he submitted his grievance WSP-04-00917 to the director's level of review, the director's level screened out the appeal as incomplete because plaintiff failed to include supporting documents, specifically, his Reception Center Medical Chrono and his Mental Health Placement Form. Plaintiff also acknowledges that he never re-submitted WSP-04-00917 to the director's level of review with the requested documents. (Am. Compl. at 30 & Pl.'s Opp'n to Defs.' Mot. to Dismiss at 1-2.) In this regard, plaintiff does not claim that prison officials hindered his efforts to re-submit the appeal or prevented him from satisfying the exhaustion requirement by not following grievance procedures. See Ngo v. Woodford, 539 F.3d 1108, 1111 (9th Cir. 2008). Nor does plaintiff claim that prison officials reliably informed him that administrative remedies were no longer available to him. See Marella v. Terhune 562 F.3d 983 (9th Cir. 2009); Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). Rather, plaintiff concedes that he did not pursue WSP-04-00917 through the director's level of review and thereby failed to exhaust available administrative remedies, a prerequisite to filing this action.
Plaintiff's stated reasons for failing to exhaust available administrative remedies are unpersuasive. First, it is well established that the PLRA requires proper exhaustion. As noted above, a prisoner does not satisfy the exhaustion requirement by filing an untimely or otherwise procedurally defective appeal. See Woodford, 548 U.S. at 83-84. See also Preston v. Hand, No. C 06-5175 RMW (PR), 2009 WL 764740 at *1-2 (N.D. Cal. Mar. 18, 2009) (prisoner failed to exhaust administrative remedies when he failed to properly re-submit his inmate appeal after prison officials screened out the appeal for failure to provide supporting documents of his claims); McCloud v. Woodford, No. CIV 06-4845 PA(JC), 2008 WL 4602548 at *5 (C.D. Cal. Oct. 14, 2008) (same); Chatman v. Johnson, No. CV S-06-0578 MCE EFB P, 2007 WL 2023544 at *6 (E.D. Cal. July 11, 2007) (same).
Second, although plaintiff may have believed that his Reception Center Medical Chrono and Mental Health Placement Form were not necessary in order to decide the merits of his appeal, his mere disagreement with prison officials about what supporting documents were relevant to his grievance does not excuse his failure to exhaust available administrative remedies. Under California regulations, an appeal may be rejected if it is "incomplete or necessary supporting documents are not attached" so long as the rejection provides "clear instructions regarding further action the inmate must take to qualify the appeal for processing." Cal. Code Regs. tit. 15, §§ 3084.3(c)(5) & (d). Here, plaintiff was advised that the director's level of review rejected his appeal. (Am. Compl. Ex. PP-9.) He was also specifically informed why his appeal was rejected and was told how to re-submit a proper appeal when the Inmate Appeals Branch Chief advised him in writing as follows:
Your appeal is incomplete. You must include supporting documentation. Your appeal is missing the CDC 128-C1, Reception Center Medical Chrono; Mental Health Placement Form.
(Id.) In this case, plaintiff simply chose not to follow those directions and failed to pursue his grievance further.
Third, prison policy may in fact allow medical staff up to 60 days to respond to an inmate's request for copies of his medical file, which may have ultimately prevented plaintiff from timely re-submitting his appeal to the director's level of review. However, the court cannot read a futility exception into the exhaustion requirement. Booth, 532 U.S. at 741 n.6. Moreover, plaintiff never attempted to obtain a copy of his Reception Center Medical Chrono or Mental Health Placement Form in order to re-submit WSP-04-00917 to the director's level of review. Had plaintiff done so, he may have been able to timely submit his appeal, or he may well have qualified for an exception to the timely filing requirement. As the Ninth Circuit Court of Appeals has recently explained:
The California Code of Regulations provides that an inmate must submit an appeal within fifteen working days of the event or decision being appealed, but the appeals coordinator is only permitted to reject an appeal if "[t]he time limits for submitting the appeal are exceeded and the appellant had the opportunity to file within the prescribed time constraints." The California Department of Corrections and Rehabilitation Operating Manual directs the appeals coordinator to "ensure that the inmate or parolee had, in fact, the opportunity to file in a timely manner." Thus, the prison's regulations explicitly create an exception to the timely filing requirement. If Marella was unable to file within the fifteen-day filing period, his failure to file timely does not defeat his claim.
Marella, 562 F.3d at 985. In Marella, the Ninth Circuit remanded the case so that the district court could determine whether the plaintiff had the opportunity to file his appeal within the fifteen day time limit. In contrast, here, the court cannot determine whether plaintiff would have had the opportunity to re-submit his appeal within the prescribed time limits or whether prison officials would have found his re-submission to qualify for an exception because he obtained the requested documentation as soon as possible. As noted above, plaintiff never attempted to pursue his grievance after the director's level screened out his appeal. Under these circumstances, the court cannot say that the exception to the timely filing requirement applies.
Finally, for the same reasons discussed above, neither plaintiff's other appeals that were "screened out" nor his correspondence to prison officials can serve as a basis for finding proper exhaustion of administrative remedies prior to filing suit. The California Department of Corrections and Rehabilitation has established an administrative grievance system through which a prisoner may achieve proper exhaustion. Exhaustion serves two primary purposes. Woodford, 548 U.S. at 89. First, exhaustion protects administrative agency authority by allowing an agency the opportunity to correct its own mistakes. Id. Second, exhaustion promotes efficiency and may produce a useful record for a subsequent court case. Id. To allow plaintiff to select which levels of the administrative grievance system to skip and which to appeal to, or to allow plaintiff to bypass the grievance system altogether by merely writing letters of complaints to the warden, would thwart the prescribed grievance process and defeat the purposes of exhaustion.
The undersigned shares the concerns expressed by Circuit Judge Pregerson in his concurring opinion in Ngo v. Woodford, 539 F.3d at 1111-12. In particular, his observations regarding the significant incentive on the part of prison officials to find claims procedurally barred is born out by the undersigned's experience in considering an onslaught of motions to dismiss prisoner civil rights complaints for failure to exhaust administrative remedies. There would appear to be little doubt that appeals coordinators in California prisons of late are "screening out" prisoner grievances on procedural grounds in record number. However, in this case plaintiff simply chose not to follow the directions he was given as to how to properly exhaust claim and failed to pursue his grievance any further. By filing a lawsuit without properly completing the administrative grievance process, plaintiff failed to exhaust his available administrative remedies, a prerequisite to filing this action. Woodford, 548 U.S. at 90-91.
If a court concludes, as it does here, that a prisoner has not exhausted administrative remedies, "the proper remedy is dismissal of the claim without prejudice." Wyatt, 315 F.3d at 1120. As noted above, plaintiff's concession to nonexhaustion is a valid ground for dismissal of an action. Wyatt, 315 F.3d at 1120. In addition, defendants have raised and carried their burden of proving the affirmative defense of failure to exhaust administrative remedies. See Jones, 549 U.S. 216; Wyatt, 315 F.3d at 1117-19. Accordingly, defendants' motion to dismiss for failure to exhaust administrative remedies prior to filing suit should be granted.*fn3
On May 14, 2008, the court screened plaintiff's amended complaint and determined that it appeared to state cognizable claims against seven defendants -- the five defendants who brought the pending motion to dismiss and defendants Nale and Akanna. Due to service problems, defendants Nale and Akanna have not yet appeared in this action. On March 20, 2009, the court granted plaintiff thirty days to provide the court with additional information that would enable the United States Marshal to serve defendants Nale and Akanna. On April 30, 2009, the court granted plaintiff an additional thirty days.
Plaintiff has since filed a request to voluntarily dismiss defendant Nale. Plaintiff has also filed the documents necessary to allow the United States Marshal to attempt re-service on defendant Akanna. Good cause appearing, the court will grant plaintiff's request to voluntarily dismiss defendant Nale. However, the court will not order the United States Marshal to attempt re-service on defendant Akanna. As discussed above, the undersigned is recommending that this action be dismissed due to plaintiff's failure to exhaust administrative remedies prior to bringing suit. Although failure to exhaust is an affirmative defense brought by a defendant, the court reached its conclusion in this case based on plaintiff's concession that he failed to exhaust his administrative remedies prior to filing suit. Plaintiff's concession in this regard applies equally to his claims against defendant Akanna. Accordingly, the court will recommend that defendant Akanna be dismissed from this action as well.
IT IS HEREBY ORDERED that plaintiff's May 6, 2009 request to voluntarily dismiss defendant Nale (Doc. No. 67) is granted.
IT IS HEREBY RECOMMENDED that:
1. Defendants' November 3, 2008 motion to dismiss (Doc. No. 50) be granted;
2. Defendant Akanna be dismissed; and
3. This action be closed.
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).