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Steven De Shazo v. Tom P. Hieng

February 14, 2011

STEVEN DE SHAZO,
PLAINTIFF,
v.
TOM P. HIENG, DEFENDANT.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANT HIENG'S MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BE DENIED OBJECTIONS DUE WITHIN THIRTY DAYS

(ECF No. 25)

I. PROCEDURAL HISTORY

Plaintiff Steven De Shazo ("Plaintiff") is an inmate in the custody of the California Department of Corrections and Rehabilitation ("CDCR") proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's May 1, 2008 First Amended Complaint alleging use of excessive force by Defendant. (ECF No. 10.) On February 4, 2010, the Court found Plaintiff's claim of excessive force cognizable and ordered service on Defendant Tom P. Hieng. (ECF No. 14.)

Pending before the Court is a Motion to Dismiss filed by Defendant. (ECF No. 25.) Plaintiff filed an Opposition to the Motion and an Addendum to his Opposition, and Defendant filed two Replies. (ECF Nos. 42 & 44; 39 & 45.)

II. FIRST AMENDED COMPLAINT

In his First Amended Complaint, Plaintiff alleges that on June 5, 2006 he filed a CDC-602 Inmate Appeals form ("602") and a CDC-1824 Reasonable Modification Request ("1824") describing the excessive force used by Defendant Hieng and gave them to Defendant Hieng "for placement in the CSP-Cor mail collection system to be delivered to the institution inmate appeals office." (Pl.'s First Am. Compl. ¶ 17.) Plaintiff never received a response to either of these filings.

On September 5, 2006, Plaintiff submitted another 602 form alleging staff misconduct. It was returned to Plaintiff for failure to state the date of the incident. Plaintiff claims he resubmitted the 602 by giving it to Defendant Hieng for delivery. (Id. Ex. E.)

Plaintiff submitted a second 1824 form on November 6, 2006. (Id. ¶ 18.) It was partially granted at the second level of review but denied at the Director's level. (Id. ¶ 21.) Though Plaintiff had included his version of the disputed use of force, it was not addressed in CDCR's response to his appeal. CDCR focused only on medical complaints in Plaintiff's 1824 claim. (Id. ¶¶ 21-22, Exs. G & H.)

Plaintiff also submitted a letter to the Office of Internal Affairs describing the excessive force incident. (Id. ¶ 19.) It was returned to Plaintiff with a note telling him he needed to file an inmate appeal. (Id. ¶ 20.)

III. LEGAL STANDARD

"The Prison Litigation Reform Act [("PLRA")] requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997e(a)); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (quoting Porter v. Nussle, 534 U.S. 516, 525 n.4 (2002)) (The PLRA "creates 'a general rule of exhaustion' for prisoner civil rights cases."). "'[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.'" Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002) (quoting Porter, 534 U.S. at 532); accord Roles v. Maddox, 439 F.3d 1016, 1018 (9th Cir.)). The PLRA's "exhaustion requirement is mandatory." McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam); accord Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court."); see also Panaro v. City of North Las Vegas, 432 F.3d 949, 954 (9th Cir. 2005) (The PLRA "represents a Congressional judgment that the federal courts may not consider a prisoner's civil rights claim when a remedy was not sought first in an available administrative grievance procedure."). Even if the prisoner seeks monetary or other relief that is unavailable through the grievance system in question, the prisoner must still first exhaust all available administrative remedies. See Booth v. Churner, 532 U.S. 731, 741 (2001) ("[W]e think that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.").

While the PLRA requires "proper" exhaustion of available administrative remedies, Woodford v. Ngo, 548 U.S. 81, 93 (2006), it does not define the boundaries of proper exhaustion. See Jones, 549 U.S. at 218. Rather, "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford, 548 U.S. at 90. "The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones, 549 U.S. at 218; see, e.g., Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009, as amended June 5, 2009) (per curiam) ("The California prison system's requirements define the boundaries of proper exhaustion.") (internal quotation marks and citation omitted). Absent a prison grievance procedure mandating the naming of each individual involved, a prisoner need not identify all of the defendants later named in a lawsuit during the administrative grievance process. Jones, 549 U.S. at 218.

The PLRA's exhaustion requirement is not jurisdictional; rather, it creates an affirmative defense that a defendant may raise in an unenumerated Rule 12(b) motion. See Jones, 549 U.S. at 213-14; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 540 U.S. 810 (2003). The defendant bears the burden of raising and proving the absence of exhaustion. Wyatt, 315 F.3d at 1119. Specifically, the defendant must show that some administrative relief remains available to the plaintiff "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, 422 F.3d at 936-37. In deciding a motion to dismiss for failure to exhaust, a court may "look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119-20. When a prisoner has not exhausted administrative remedies on a claim, "the proper remedy is ...


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