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Ellington v. Clark


August 2, 2010


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


(ECF NO. 43)


Findings And Recommendations

I. Background

Plaintiff Marcus R. Ellington ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's second amended complaint against Defendants Lunes, Reynoso, Polk, Diaz, and Clark for retaliation in violation of the First Amendment, and against defendants Lunes and W. Jones for deprivation of property in violation of the Due Process Clause of the Fourteenth Amendment.

On December 8, 2009, Defendants filed a motion to dismiss pursuant to the unenuemerated portion of Federal Rule of Civil Procedure 12(b), for Plaintiff's failure to exhaust administrative remedies. (Defs.' Mot. Dismiss, ECF No. 43.) On June 30, 2010, Plaintiff filed his opposition, entitled "Notice/Plaintiff's Renewed Demonstration of Exhaustion of Administrative Remedies Per-Court Order." (Pl.'s Opp'n, ECF No. 66.) On July 26, 2010, Defendants filed their reply. (Defs.' Reply, ECF No. 68.) The matter is submitted pursuant to Local Rule 230(l).*fn1

II. Summary Of Second Amended Complaint

Plaintiff was previously incarcerated at California Substance Abuse Treatment Facility ("CSATF"). On December 27, 2008, at approximately 5 PM, Plaintiff's cellmate Hill told registered nurse Giwa during medication distribution that Hill was going to kill himself. (Pl.'s Second Am. Compl. ("SAC"), p. 3.) Hill was removed from his cell to the clinic, where he informed Defendant Dergeant Lunes that unless Plaintiff was moved, Hill would kill Plaintiff. Defendant Lunes ordered Hill moved to another cell, and Plaintiff was placed into a holding cage at the clinic. (SAC, p. 3.) Defendant Lunes ordered a cell search as punishment for Plaintiff having a series of cell changes due to his bipolar condition. (SAC ¶ 5.) Defendant Captain Reynoso is aware that Plaintiff is not a Crip gang member and has difficulty being housed with Crip gang members, but Reynoso continued to house Plaintiff with Crips. (SAC ¶ 6.) During the cell search, Defendant W. Jones confiscated and destroyed several of Plaintiff's items. (SAC ¶ 11.)

Defendant Lunes ordered Plaintiff returned to his cell, where Plaintiff found his cell in shambles. (SAC ¶ 7.) Plaintiff refused to enter his cell. (Id.) Plaintiff was then wheeled back to the holding cage in at the clinic where Defendant Lunes informed Plaintiff that he was going to Administrative Segregation Unit ("ASU") for threatening Defendant Lunes and that Plaintiff would be transferred. (SAC ¶ 9.)

Plaintiff was placed in ASU on December 27, 2008. (SAC ¶ 13.) Defendant Lunes found an old confidential memorandum that included an inmate's statement that Plaintiff is a gang member. (SAC ¶ 13.) Defendant Lunes included this memorandum in his supplemental report to the Rules Violation Report concerning threats. (SAC ¶ 13.)

Defendant Captain Reynoso reviewed the threat charge and found the charge to be unsubstantiated. (SAC ¶ 14.) Defendant Reynoso changed the charge to "behavior that might lead to violence," despite not having any authority to do so. (SAC ¶ 15.)

On January 23, 2009, Plaintiff was taken to Institutional Classification Committee ("ICC") where Defendant Reynoso asked Defendant Polk to retain Plaintiff in ASU and transfer him because of Defendant Lunes's report. (SAC ¶ 19.) Defendant Polk did not permit Plaintiff to speak at the hearing and agreed with Defendant Reynoso's assessment. (SAC ¶ 20.)

Plaintiff then contacted Defendant deputy chief warden Diaz and explained to him that the threat charge which led to Plaintiff's placement in ad seg had been dismissed and that Plaintiff should thus be released. Defendant Diaz ordered that Plaintiff be brought to the next ICC hearing and if there was no other reason to retain Plaintiff in ad seg other than Lunes's threat charge, Plaintiff would be released. (SAC ¶ 22.)

On January 29, 2009, Plaintiff was brought before ICC again, with Defendant Diaz present. (SAC ¶ 23.) Plaintiff was shown for the first time the supplemental report by Lunes. (SAC ¶ 23.) Plaintiff requested an opportunity to present his cause, and Defendant Diaz ordered that Plaintiff be brought to the next ICC hearing. (SAC ¶ 23.) Plaintiff at his next ICC hearing was retained in ASU again by Defendant Polk. (SAC ¶ 25.) Plaintiff had notified Defendants Diaz, Polk, and Warden Clark that his transfer and ad seg placement were based on a nonexistent threat charge and that it was being done in a retaliatory manner. (SAC ¶ 29.)

III. Exhaustion Of Administrative Remedies

A. Legal Standard

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." 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 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). 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 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (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, 549 U.S. at 216; 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 curiam)). 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 failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.

B. Discussion

The California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). The process is initiated by submitting a CDC Form 602. Id. § 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. § 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. §§ 3084.5, 3084.6(c). In order to satisfy § 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 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always require pursuit of an appeal through the Director's Level of Review. What is required to satisfy exhaustion is a fact specific inquiry, and may be dependent upon prison officials' response to the appeal. See Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of exceptions to exhaustion requirement from other circuits); Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005) ("[E]ntirely pointless exhaustion" not required).

Defendants contend that Plaintiff did not exhaust administrative remedies prior to filing his suit. (Defs.' Mem. P. & A. Support Mot. Dismiss 7:19-8:8.) Defendants submit in support Exhibit A, inmate grievance No. SATF-09-00271, which concerned Defendants Lunes and Jones's actions. (Defs.' Mot. Dismiss, Appeals Coordinator Bob Hall Decl., Ex. A, Inmate Grievance No. SATF-09-00271.) Plaintiff filed this grievance on January 12, 2009, and it was received January 14, 2009 by the CSATF Appeals office. The grievance was exhausted at the Director's Level on July 1, 2009. Plaintiff initiated this action on January 5, 2009. (Pl.'s Compl., ECF No. 1.)

Plaintiff does not dispute that grievance No. SATF-09-00271 was exhausted on July 1, 2009. Plaintiff contends, however, that he has exhausted administrative remedies because he exhausted his grievance prior to Defendants being served with summons and complaint. (Pl.'s Opp'n 2.) Plaintiff contends that because actual exhaustion has occurred, there is no reason to dismiss the complaint.

Plaintiff's contention fails as a matter of law. Controlling Ninth Circuit law interprets § 1997e(a) to "require[ ] exhaustion before the filing of a complaint and that a prisoner does not comply with this requirement by exhausting available remedies during the course of the litigation." McKinney, 311 F.3d at 1199. Furthermore, [w]hile it is true that requiring dismissal may, in some circumstances, occasion the expenditure of additional resources on the part of the parties and the court, it seems apparent that Congress has made a policy judgment that this concern is outweighed by the advantages of requiring exhaustion prior to the filing of suit.

Id. at 1200. The undersigned recommends dismissal of this action without prejudice, Wyatt, 315 F.3d at 1119-20, and does not reach Defendants' and Plaintiff's other arguments.*fn2

IV. Conclusion and Recommendation

Based on the foregoing, it is HEREBY RECOMMENDED that Defendants' motion to dismiss, filed December 8, 2009, be GRANTED and this action be DISMISSED 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)(1). Within thirty (30) 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).


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