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Oquendo v. Davis

June 10, 2010

JOSE ANGEL OQUENDO, PLAINTIFF(S),
v.
JAMES DAVIS AND MARILYN KALVELAGE, DEFENDANT(S).



The opinion of the court was delivered by: Roger L. Hunt Chief United States District Judge

ORDER

(Motion to Dismiss--#24)

Before the Court is Defendants Davis and Kalvelage's Motion to Dismiss (#24). The Court also considers Plaintiff's Opposition (#27) and Defendant's Reply (#28). The Court finds the motion has merit. It will be granted for the reasons discussed below.

BACKGROUND

Plaintiff Oquendo is a California inmate who is housed at Sumter Correctional Institution in Bushnell, Florida, under the Interstate Corrections Compact. He alleges that he was denied parole at a hearing in April 2005 and was unable to Appeal the denial of parole because he did not have access to California legal materials.

He sued Defendant James Davis because of his one time capacity as Chairman of California's Board of Parole Hearings. While not material to this motion, the Court notes that Davis was not the Chair at the time of the parole hearing of April 2005, nor was he even present, nor did he have any contact with Oquendo.

He sued Marilyn Kalvelage as Administrator for the Interstate Compact Unit of the Board of Parole Hearings. She was not the Administrator of the Interstate Compact Unit of the Board of Parole Hearings in April 2005. Rather, she was the Deputy Director of Parole and, as such, did not work with inmates, only parolees. She, too, did not have any contact with Oquendo.

Following his denial of parole, Oquendo was told by the Board that he could appeal the denial by doing so according to California law. However, when he went to the library at the Florida prison, he was told they could not provide him with California legal materials. He then claims he wrote to California officials requesting the materials, but did not get a response.

DISCUSSION

The basis for the motion to dismiss is that Oquendo failed to exhaust his administrative remedies. In the Ninth Circuit, the burden of proving the failure to exhaust rests with a defendant. Defendants have met that burden. Plaintiff's Complaint is subject to dismissal under an un-enumerated Fed. R. Civ. P. 12(b) motion as it is not jurisdictional. 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. This permits defendants to move for dismissal under Rule 12(b) and support their motion with evidence and affidavits extrinsic to the Complaint. Ritza v. Int'l Longshoremen's & Wharehousemen's Union, 837 F.2d 365, 368-69 (9th Cir. 1988).

The administrators for the Interstate Corrections Compact for both Florida and California have assured counsel for Defendants that neither have any record of Oquendo complaining about a lack of access to California legal materials.

Exhaustion of administrative remedies for prisoners involves filing an administrative grievance at the Institution where they are housed. This gives the Institution the opportunity to resolve issues complained of by an inmate. Oquendo did not file an administrative grievance in regards to not being able to obtain California legal materials at his Institution in Florida. Plaintiff did file one administrative grievance while housed in Florida, but that was in regards to visitation rights. He filed no administrative grievances in California.

Under Section 1997e(a) of the Prison Litigation Reform Act ("PLRA"), "no 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).

The Supreme Court has held that under section 1997e(a), an inmate, even one seeking only money damages, must exhaust remedies through the administrative grievance process, prior to bringing an action in Federal Court. Booth v. Churner, 532 U.S. 731, 741 (2001). The Booth Court also held that this statute eliminates any discretion to dispense with administrative exhaustion and the requirement that it be "plain, speedy and effective" before exhaustion was required. Id. at 739. Also, it refused to read futility or other exceptions into the exhaustion requirements. Id. at 741 n6. The Supreme Court has reiterated that it is necessary for ...


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