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Barry Louis Lamon v. John Tilton


February 14, 2011


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


(DOC. 119)


Findings and Recommendation

I. Procedural History

Plaintiff Barry Louis Lamon ("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 third amended complaint against Defendant Wilber for violation of Plaintiff's rights under the First Amendment, Eighth Amendment, and California Civil Code section 52.1. On September 9, 2010, Defendant Wilber 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. Def.'s Mot. Dismiss, Doc. 119. *fn1 On December 27, 2010, Plaintiff filed his opposition. *fn2 Pl.'s Opp'n, Doc. 136. On December 27, 2010, Defendant filed his reply.

Def.'s Reply, Doc. 135. The matter is submitted pursuant to Local Rule 230(l).

II. Summary Of Third Amended Complaint

Plaintiff is incarcerated at Corcoran State Prison, where the events giving rise to this action occurred. Plaintiff alleges that from approximately September 15, 2006 through March 29, 2007, Defendant Wilber retaliated against Plaintiff by serving him only one-third to one-half portions of meals consisting of pan-scrapings, crumbs, remnants, and scraps of food. *fn3

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).

Defendant contends that Plaintiff failed to exhaust administrative remedies. *fn4 Defendant assumes that the term "approximately" regarding the September 15, 2006 date applied to events occurring on or after August 1, 2006. Def. Wilber's P. & A. Support Mot. Dismiss 2:16-17. Defendant found only two grievances were filed on or after August 1, 2006, grievance Nos. CSPC-6-06-04089 and CSPC-6-06-3312. Defendant contends that grievance No. CSPC-6-06-04089 concerned allegations of a food-tainting campaign against Plaintiff by certain Defendants. Id. at 3:4-11. Grievance No. CSPC-6-06-3312 concerned denial of access to the law library, and is not relevant to the remaining claim in the third amended complaint. Id. at 3:12-4:2.

Defendant also lists grievance No. CSPC-6-06-3275. Defendant contends that this grievance was initiated on June of 2006, and was thus not relevant to the claims in the complaint. Id. at 4:3-10.

Having examined the exhibits submitted in support, the Court finds that Defendant has met his initial burden of demonstrating that Plaintiff did not exhaust administrative remedies. The burden shifts to Plaintiff to demonstrate otherwise.

Plaintiff contends that there is no applicable state law that states what level of specificity is required in a grievance. Pl.'s Opp'n 11:20-14:19. However, it is federal law that interprets the applicable exhaustion requirement of the PLRA. In this case, federal law requires a level of specificity that is determined by the inmate grievance process at the prison. Jones v. Bock , 549 U.S. 199, 218 (2007). When an inmate grievance system is silent as to factual specificity, as is the case with California, "a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio , 557 F.3d 1117, 1120 (9th Cir. 2009).

Plaintiff contends that he did exhaust administrative grievances as to his deprivation of food claim. Pl.'s Opp'n 14:21-16:21. Having examined the relevant grievances, however, the Court does not find that did exhaust administrative remedies regarding the denial of food. Grievance No. CSPC-6-06-3275 complained of denial of whole fruits and vegetables. Denial of whole fruits and vegetables does not grieve a denial of food. Plaintiff's grievance complained of the type of food provided, and did not provide notice of a lack of food. Grievance No. CSPC 6-06-4089 apparently complained of not receiving any vegetables at all except in Plaintiff's dinner entree. Plaintiff's grievance yet again complains of the type of food provided, and not a lack of food. Plaintiff's grievance focused on the denial of Plaintiff's kosher meals as well as food-tainting, which is not sufficient notice regarding a lack of food. Thus, Plaintiff's grievances do not demonstrate that he provided sufficient notice regarding the problem and the action requested. Griffin, 557 F.3d at 1120.

Plaintiff contends that federal case law does not require exhaustion of administrative remedies for situations in which retaliatory actions were substantial enough to chill the constitutional conduct of an average person, citing to Rhodes v. Robinson , 408 F.3d 559 (9th Cir. 2005), and other similar cases. Pl.'s Opp'n 17:10-24. Plaintiff is incorrect. The Rhodes court held that a prisoner need not demonstrate total chilling of his First Amendment rights to file an inmate grievance in order to state a cognizable claim for retaliation. Rhodes , 408 F.3d at 568-69. It does not hold that the exhaustion requirement is waived. None of Plaintiff's other citations have likewise held that the exhaustion requirement is waived merely because of alleged retaliation. *fn5

Plaintiff contends that because the California inmate grievance process has four levels of review, and Plaintiff is allowed to raise additional claims at each level, the Court should review all of Plaintiff's claims raised at each level in determining whether Plaintiff exhausted his claims. First, it is unclear whether Plaintiff can raise additional claims at each level of the inmate appeals process. It appears that the inmate grievance process allows appeals to a higher level when a prisoner is dissatisfied with the response provided. Cal. Code Regs. tit. 15, § 3084.5. That does not indicate whether adding additional claims at each level is allowed. Even if the Court followed Plaintiff's arguments, Plaintiff fails to cite to any part of his grievance which would provide sufficient notice to prison officials of the problem and the action requested for purposes of satisfying the PLRA's exhaustion requirement. Plaintiff's argument is thus unavailing.

Plaintiff next contends that he does not have to satisfy exhaustion of administrative grievances by following the administrative grievance process in the prison, but merely through submission of CDCR form No. G-22 "Inmate Requests for Interview," citing to Brodheim v. Cry , 584 F.3d 1262, 1271 n.4 (9th Cir. 2009). Pl.'s Opp'n 19:9-20:10. Footnote 4 reads as follows:

Appellees argue that the comment was not in response to the "grievance" (the 602 form), but only the "interview request form." The applicability of the constitutional right to redress of grievances does not hinge on the label the prison places on a particular complaint. It is clear that Brodheim's interview request -- a challenge to an adverse ruling on his complaint -- was part of the grievance process, and was thus protected activity.

Id. Plaintiff contends that the above language means that Plaintiff has exhausted administrative remedies when he filed GA-22 forms and did not receive a response because the interview form is part of the grievance process. The above footnote refers to whether or not a certain comment made by a prison official could be construed as retaliatory in nature in violation of the First Amendment. It does not address the issue of whether merely by filing a GA-22 form, a prisoner can exhaust administrative remedies. To allow otherwise would be to undermine a prison's own regulatory measures for processing of grievances, which is contrary to applicable federal law. See Jones v. Bock , 549 U.S. 199, 218 (2007) (proper exhaustion is defined by the prison grievance process itself). Plaintiff's argument is thus unavailing.

Plaintiff also re-raises several arguments concerning the screening of Plaintiff's third amended complaint. Pl.'s Opp'n 21:2-26:17. The Court finds no cause to re-visit the previous Findings and Recommendations screening his complaint, and subsequent order adopting the Findings and Recommendations.

Defendant has sufficiently demonstrated that Plaintiff did not exhaust available administrative remedies regarding his food deprivation claim, the only remaining claim in this action. Plaintiff failed to demonstrate otherwise. The Court recommends dismissal of this action without prejudice. Wyatt , 315 F.3d at 1119-20.

IV. Conclusion And Recommendation

Based on the foregoing, it is HEREBY RECOMMENDED that:

1. Defendant Wilber's motion to dismiss, filed September 9, 2010, should be GRANTED; and

2. This action be DISMISSED without prejudice for Plaintiff's failure to exhaust available administrative remedies pursuant to 42 U.S.C. § 1997e(a).

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-one (21) days after being served with these Findings and Recommendations, the parties may file written objections with the court. Such a 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, 1156-57 (9th Cir. 1991).



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