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Foster v. Verkouteren

August 12, 2009

RICHARD LEE FOSTER, PLAINTIFF,
v.
A. VERKOUTEREN, DEFENDANT.



The opinion of the court was delivered by: Cathy Ann Bencivengo, United States Magistrate Judge

ORDER:

1) DENYING DEFENDANT'S MOTION TO DISMISS [Doc. No. 15]; and,

2) GRANTING DEFENDANT'S JUDGMENT [Doc. No. 14]

MOTION FOR SUMMARY

Plaintiff Richard Lee Foster, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against A. Verkouteren, a prison officer at R.J. Donovan Correctional Facility ("Donovan"), where Plaintiff was incarcerated. The parties have consented to the undersigned's jurisdiction to decide all matters in this case, including trial and entry of a final judgment. [Doc. No. 9.] On June 5, 2009, Defendant moved to dismiss Plaintiff's complaint for failure to exhaust administrative remedies. [Doc. No. 15.] Defendant also moved for summary judgment, arguing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. [Doc. No. 14.] On June 10, 2009, the Court notified Plaintiff of these two motions and informed Plaintiff that if he wished to oppose these motions, his oppositions were due on June 16, 2009. [Doc. No. 16.] Plaintiff filed a late opposition on July 24, 2009 [Doc. No. 20], which this Court accepted. Defendant has not filed a reply. Having carefully considered the papers submitted and the relevant legal authority, the Court hereby DENIES Defendant's motion to dismiss and GRANTS Defendant's motion for summary judgment.

I. BACKGROUND

According to the Complaint, on August 25, 2007, at approximately 7:50 p.m., Plaintiff was instructed by Defendant Verkouteren to go to his cell. (Compl. 3.)*fn1 Plaintiff informed Verkouteren that he was feeling stressed out, did not want to have a new cell mate, did not want to be at Donovan any longer, and would rather go to administrative segregation. Verkouteren told Plaintiff, "The only way you will go to the hole is if you get up and swing on one of the officers or myself." Plaintiff said he would not swing at Verkouteren, but he did not want to go to his cell. Verkouteren directed another correctional officer to cuff Plaintiff and take him back to his cell. Plaintiff stepped away from the officer, and Verkouteren "proceeded to sock me in my facial area approximately four times with closed fist(s)." (Id.) "After being socked/punched by Verkouteren approximately four times I then from spontaneous reaction had pushed Verkouteren one time away from me in order to ward off the blows which he had been inflicting upon me." (Id.) Other correctional officers then tackled Plaintiff to the ground. (Id. at 13.) Plaintiff was then taken to have a medical evaluation. (Id. at 14.) Plaintiff later had some "minor pain" and noticed three small drops of blood on his shirt. (Id. at 15.) He was taken to the prison hospital, but it is not clear what treatment he received at the hospital. Plaintiff later appeared at a disciplinary hearing where he was found guilty of battery on Verkouteren. (Id. at 16.) As a result, Plaintiff was placed in the segregated housing unit for 12 months. (Id. at 19.)

On August 31, 2007, Plaintiff filed an inmate appeal form alleging that Verkouteren had committed a battery on him. (Id. at 22.) He requested that the matter be addressed in "a real court of law." (Id.) The appeal was "partially granted" on September 30, 2007. (Id. at 23.) In the response, Plaintiff was informed that his appeal was "processed as a staff complaint appeal inquiry." (Id. at 21.) He was also informed that an inquiry into the allegation had been conducted. Plaintiff then sent a letter to the district attorney's office on December 18, 2007. (Id. at 11-20; E. Franklin Decl. Ex. C.) In the letter, he recounted the incidents of August 25, 2007. He complained that his appeals rights were being violated and he had not received any justice in prison. (Compl. at 20.) He asked the district attorney to "please help me if you will/can". (Id.) The district attorney's office forwarded the letter to the warden at Donovan. (E. Franklin Decl. ¶ 10.) The warden asked that the appeals coordinator, E. Franklin, respond to the letter. (Id. ¶ 11.) On February 25, 2008, E. Franklin responded to Plaintiff's letter and informed him that the appropriate method for expressing his concerns was the California Department of Corrections Form 602, Inmate/Parolee Appeal Form. (Id. ¶ 12 & Ex. D.)*fn2

Plaintiff filed the instant Complaint in this Court on March 24, 2008. [Doc. No. 1.] When Plaintiff filed his Complaint, he consented to magistrate judge jurisdiction to conduct any and all proceedings in the case, including trial and entry of final judgment. (Id. at 7.) On October 30, 2008, Defendant also consented to magistrate judge jurisdiction. [Doc. No. 8.] On December 1, 2008, the district judge entered an order reassigning the case to the undersigned magistrate judge. [Doc. No. 9.] This Court issued an order setting pretrial deadlines on December 4, 2008. [Doc. No. 11.] On June 5, 2009, Defendant filed a motion to dismiss the case for failure to exhaust [Doc. No. 15] and a motion for summary judgment [Doc. No. 14]. The Court addresses each of these motions below.

II. DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST

A. Legal Standard

The Prison Litigation Reform Act ("PLRA") provides that "[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." 28 U.S.C. § 1997e(a). Non-exhaustion under § 1997e(a) is an affirmative defense. That is, defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 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. Id. at 1119-20. If the court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal without prejudice. Id. at 1120.

California's Department of Corrections ("CDC") provides a four-step grievance process for prisoners who seek review of an administrative decision or perceived mistreatment. Within 15 working days of "the event or decision being appealed," the inmate must ordinarily file an "informal" appeal, through which "the appellant and staff involved in the action or decision attempt to resolve the grievance informally." Cal. Code Regs., tit. 15, §§ 3084.5(a), 3084.6(c).*fn3 If the issue is not resolved during the informal appeal, the prisoner next proceeds to the first formal appeal level, usually conducted by the prison's appeals coordinator. Id. §§ 3084.5(b), 3084.6(c). If denied at that level, the inmate can appeal to the second level of formal review conducted by the institution head or his/her designee. Id. at § 3084.5(c). The third and final level of ...


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