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Bejaran v. Lueth

July 23, 2010

JESSE E. BEJARAN, #F-81663 PLAINTIFF,
v.
BRIAN K. LUETH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David Alan Ezra United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

On May 24, 2010, Defendants filed the instant Motion to Dismiss. After reviewing the motion and the supporting and opposing memoranda, the Court GRANTS Defendants' Motion. (Doc. # 54.)

BACKGROUND

The Court has recounted the facts of this case extensively in prior Orders. (Docs. ## 42, 52.) Jesse E. Bejaran, ("Plaintiff") was a prisoner at the Deuel Vocational Institution ("DVI"), under the custody of the California Department of Corrections and Rehabilitation ("CDCR") at the time the original Complaint was filed on April 14, 2008. (Doc. # 1; Doc. # 39 at 11.) On August 14, 2009, Plaintiff filed his Fifth Amended Complaint while incarcerated at Corcoran State Prison ("Corcoran"). (Doc. # 39 at 11.) In an order filed on December 8, 2009, the Court screened the complaint, construing it liberally, and allowed certain deliberate indifference claims against Lt. Ruiz, Lt. Rodriguez, P/A Street, C/O Hughes, C/O Mayes, C/O Huesel, C/O Loiler, C/O Franco, C/O Cardoza, C/O Mendoza, and C/O Braga (collectively "Defendants") for varying incidents. (Doc. # 42 at 17.) The four claims, all from Plaintiff's incarceration at DVI, consist of: (1) denied use of a cane; (2) denied housing on the first tier; (3) denial of medical treatment and medication after his fall down the stairs; and (4) lack of adherence to the CDCR's inmate escort policy. (Id. at 2.) The Court dismissed the claims against Warden Moore, CDCR, and those under the ADA. (Id. at 17.)

On May 24, 2010, Defendants filed the instant motion to dismiss due to failure to exhaust administrative remedies. (Doc. # 54 at 2.) Defendants' exhibits attached to the motion include Plaintiff's Reasonable Modification or Accommodation Request, submitted September 16, 2007, which was spilt into two issues--(1) cane and medication request (#07-02571) and (2) access to ADA programs and request for extended stay privileges (#07-02572). (Doc. # 54 Ex. AB.) Both were denied in Director's Level Appeal Decisions on November 29, 2007, for the first issue and December 28, 2007, for the second issue. (Id.) An additional Reasonable Modification or Accommodation Request (#07-03491) was submitted on December 20, 2007, but only led to a partially granted Second Level Response, dated February 14, 2008. (Doc. # 54 Ex. D.) This grievance consisted of a request for a medication change. A listing of all of Plaintiff's Appeals and the decisions at DVI is also included with the motion. (Doc. # 54 Ex. C.)

Plaintiff filed a Response to the Motion to Dismiss on July 9, 2010. (Doc. # 59.) Plaintiff included new information about an informal level appeal, which was granted on February 25, 2008. (Doc. # 59 Ex. C.) Plaintiff's exhibits also contain appeals, medical history, and history of his appeals while at Corcoran State Prison. (Doc. # 59 Ex. A, D, E, F, G, H, I.) On July 16, 2010, Defendants filed a Reply to Plaintiff's Opposition to the Motion to Dismiss. (Doc. #62).

DISCUSSION

Under the Prison Litigation Reform Act ("PLRA"), a prisoner may not bring action under 42 U.S.C. § 1983 "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The PLRA was adopted to address problems that were plaguing the courts by: (1) curbing frivolous claims; (2) reducing the number of suits while increasing quality; (3) allowing the agency to handle the suits internally, possibly eliminating the need for a lawsuit; and (4) developing an administrative record if a lawsuit is eventually filed. Porter v. Nussle, 534 U.S. 516, 516-17 (2002). The policy "[requires] dismissal without prejudice when there is no presuit exhaustion [as it] provides a strong incentive that will further these Congressional objectives; permitting exhaustion pendente lite will inevitably undermine attainment of them." McKinney v. Carey, 311 F.3d 1198, 1200-1201 (9th Cir. 2002).

The PLRA functions as a defense, and the "defendants have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). Because it is an affirmative defense, "a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process." Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005). Not only must administrative remedies be exhausted by the Plaintiff, "proper exhaustion of administrative remedies is necessary." Woodford v. Ngo, 548 U.S. 81, 83 (2006) (emphasis added). Simply, a "[prisoner] need comply only with the prison's own grievance procedures to properly exhaust under the PLRA." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing Jones v. Bock, 549 U.S. 199, 218 (2007)). The Court has wider discretion in regards to a motion to dismiss for failure to exhaust administrative remedies, as "[c]courts considering 'nonenumerated' Rule 12(b) motions on the issue of administrative exhaustion may not only rely on matters outside the pleadings but also have broad discretion to resolve any factual disputes." Irvin v. Zamora, 161 F. Supp. 2d 1125, 1128 (S.D. Cal. 2001) (quoting Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988)); see also Jensen v. Knowles, 621 F. Supp. 2d 921, 925 (E.D. Cal. 2008); Wyatt, 315 F.3d at 1119-20.

Plaintiff was required under the PLRA to adhere to the grievance procedures followed by his prison, DVI, and moreover, the CDCR, before filing a lawsuit. In California, a four-tiered system governs grievances filed by prisoners. Cal. Code Regs. tit. 15, § 3084.5. The prisoner will go through the informal level, first formal level, second formal level, and third formal level, in order to exhaust his or her administrative remedies. Id. The informal level essentially notes the complaint, that a staff member has been notified of the prisoner's complaint and the staff member's response. This must be completed within ten working days. Id. § 3084.6. If the prisoner is not satisfied, it will proceed to the formal levels. First, the complaint is submitted to the appeals coordinator for review. The second review is done by the head of the institution and finally, the process is exhausted when it is submitted to the Director of the CDCR. Id.; see also Woodford, 548 U.S. at 85-86; Brown v. Valoff, 422 F.3d 926, 929 (9th Cir. 2005) ("California's Department of Corrections provides a four-step grievance process for prisoners who seek review of an administrative decision or perceived mistreatment"); Irvin, 161 F. Supp. 2d at 1129 ("the Director's Level Decision shall be final and exhausts all administrative remedies available").

The PLRA administrative requirement should not be viewed as so rigorous that it bars prisoner appeals from the court:,

[T]he grievance system in California does not require a prisoner to expressly name the defendants. See Cal.Code Regs. tit. 15, § 3084.5 (requiring only that the prisoner describe the problem and action requested). This is likely so because the administrative grievance system is less about future litigation and more about reaching an internal and speedy resolution of the prisoner's problem.

Jensen v. Knowles, 621 F. Supp. 2d 921, 928 (E.D. Cal. 2008) (citations omitted). Nor does a plaintiff need to make a grievance as detailed as a lawsuit complaint. A plaintiff's failure to grieve deliberate indifference does not invalidate his exhaustion attempt. A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation.

Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). However, a plaintiff will not be successful in proceeding with a lawsuit if his or her grievance "did not alert the prison to the nature of his problem." Id. at ...


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