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Jeffrey E. Walker v. A.H. Whitten


April 14, 2011



Plaintiff Jeffrey E. Walker, a state prison inmate proceeding pro se, initiated this action for claims pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c)(17).

On February 9, 2011, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty- one days. (Docket No. 45.) Defendants*fn1 object to the magistrate judge's recommendation that their motion under Federal Rule of Civil Procedure 12(b) to dismiss for plaintiff's failure to exhaust administrative remedies be denied.*fn2 (Docket No. 49.)

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court will adopt the findings and recommendations, except to the extent that they rely on section 3084.9(i) (providing for special procedures for staff complaints) of Title 15 of the California Code of Regulations, which was not in effect when plaintiff filed his administrative appeals, and will deny the moving defendants' motion to dismiss for plaintiff's failure to exhaust administrative remedies.

I. Factual and Procedural Background

As pertinent to the motion, plaintiff filed a grievance in November of 2008 for improper searches, retaliation, and deliberate indifference to plaintiff's psychiatric history in 2007 and 2008. Plaintiff alleges that the alleged staff misconduct stemmed from the dismissal of a rules violation report in 2007. (See Lewis Decl. in Supp. of Defs.' Mot. to Dismiss ("Lewis Decl.") Ex. C at 28-29*fn3 (Docket No. 23-4).)

The grievance was categorized as a "staff complaint." At the second level of the inmate appeals process, plaintiff received a response informing him that his administrative appeal was partially granted and that an investigation was conducted, but the investigation found that the allegations were unsubstantiated. (Id. Ex. C at 32-33.) Plaintiff then filed an administrative appeal at the director's level. In March of 2009, before plaintiff received a response at the director's level, plaintiff filed the instant action in this court. Plaintiff received a response at the director's level denying his appeal in May of 2009. (Id. Ex. C at 26-27.)

II. Discussion

A prisoner may not bring a § 1983 claim "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The prisoner must satisfy the exhaustion requirement before filing the complaint. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam). A plaintiff need not plead or prove exhaustion; a plaintiff's failure to exhaust is an affirmative defense that must be raised and proved by the defendant. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). A defendant may move to dismiss for a plaintiff's failure to exhaust pursuant to Federal Rule of Civil Procedure Rule 12(b). In deciding the motion, the court may look beyond the pleadings and decide disputed issues of fact. See id. at 1119-20. Failure to exhaust requires dismissal without prejudice. Id. at 1120.

Exhaustion is mandatory regardless of the form of relief sought by the prisoner. See Booth v. Churner, 532 U.S. 731, 739 (2001) (prisoners are obligated to navigate all of a prison's administrative process "regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible"), overruling Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999). However, "a prisoner need not press on to exhaust further levels of review once he has either received all 'available' remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available." Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).

Because "there can be no 'absence of exhaustion' unless some relief remains 'available,' a defendant must demonstrate that pertinent relief remained available." Id. at 936-37. Pertinent relief may remain available "at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process." Id. at 937. Evidence that the defendant may use to meet his burden includes "statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure." Id. The latter category of evidence is relevant because "it informs [the court's] determination of whether relief was, as a practical matter, 'available.'" Id. (emphasis added).

Here, when plaintiff filed his administrative appeals, an inmate in California could file administrative appeals following the procedures found in sections 3084.1 through 3084.7 of Title 15 of the California Code of Regulations.*fn4 Under the regulations in effect at the time, a prisoner "[could] appeal any departmental decision, action, condition, or policy which they [could] demonstrate as having an adverse effect upon [his] welfare." Cal. Code Regs. tit. 15, § 3084.1(a). The regulations set forth four levels of appeal: (1) informal level, in which the prisoner and the staff attempted to resolve the issue; (2) first formal level, usually conducted by the institution's appeals coordinator; (3) second formal level, conducted by the institution's head; (4) and third formal level, conducted by the director of the California Department of Corrections and Rehabilitation ("Department").

Defendants have provided the Department's Administrative Bulletin, issued on August 21, 1998, governing the processing of appeals that allege staff misconduct. (Defs.' Nunc Pro Tunc Req. for Extension of Time to File Ex. A ("Administrative Bulletin") (Docket No. 50).) The Ninth Circuit has described this Bulletin as reflecting a procedure in which the only remedy available for an appeal categorized as a "staff complaint" is an investigation into the alleged staff misconduct. Brown, 422 F.3d at 937-39. The Bulletin provides that "ALL complaints which allege any misconduct by a staff member shall be logged by the appeals coordinator as a Staff Complaint." (Id. (bold in original).)

The Bulletin states that if a staff complaint "warrants a formal . . . investigation," then the second level response "shall note that the appeal was granted or partially granted (depending upon the action requested by the appellant)." (Id. § 2 (emphasis added).) The Bulletin's definition of partially granted suggests that an investigation is the only remedy available to a prisoner alleging staff misconduct: "Whether an appeal directed to the staff complaint procedure is given a 'granted' or 'partially granted' response depends not on whether there remains some possibility of obtaining relief through the appeals process, but on 'the action requested by the appellant.'" Brown, 422 F.3d at 939.

The response at the second level that plaintiff received for his staff complaint is consistent with the Bulletin. (See Lewis Decl. Ex. C at 32.) The response stated that the appeal was partially granted at the second level and that an investigation into the allegations had been conducted. The response informed plaintiff that the investigation revealed no evidence to support his allegations.

The response noted that plaintiff sought additional remedies beyond an investigation into alleged staff misconduct, such as disciplinary action, a restraining order, and that the staff be professional in their interactions with plaintiff. Important to this motion, the response suggests that no further remedies were available: "Although you have the right to submit a staff complaint, a request for administrative action regarding staff or the placement of documentation in a staff member's personnel file is beyond the scope of the staff complaint process." (Id. Ex C at 33.) The response at the director's level, which defendants argue plaintiff was required to receive before filing the instant action, confirms that no further remedies remained available once an investigation was ordered and contained this same language quoted above. (Id. Ex. C at 26.).

Relying on Brown, a number of courts have found that an appeal of a complaint categorized as a "staff complaint" was exhausted once an investigation was ordered.*fn5 See, e.g., Lugo v. Williams, No. CIV S-09-0505 MCE CMK, 2010 WL 4880657, at *6 (E.D. Cal. Nov. 23, 2010) (magistrate judge's findings and recommendations), adopted by No. 2:09-cv-00505 MCE CMK, 2011 WL 346536 (E.D. Cal. Feb. 1, 2011); Cottrell v. Wright, No. CIV S-09-824 JAM KJM, 2010 WL 4806910, at *5 (E.D. Cal. Nov. 18, 2010) (magistrate judge's findings and recommendations), adopted by No. CIV S-09-0824 JAM DAD, 2011 WL 319080 (E.D. Cal. Jan. 28, 2011); Aubert v. Elijah, No. 1:07-cv-01629 LJO GSA, 2010 WL 3341915, at *7 (E.D. Cal. Aug. 24, 2010) (magistrate judge's findings and recommendations), adopted by No. 1:07-cv-01629 LJO GSA, 2010 WL 3825609 (E.D. Cal. Sept. 28, 2010); Lees v. Felker, No. CIV S-08-196 KJM, 2010 WL 2353517, at *4 (E.D. Cal. June 9, 2010) (magistrate judge's order); Foster v. Verkouteren, Civil No. 08cv0554, 2009 WL 2485369, at *5 (S.D. Cal. Aug. 12, 2009) (magistrate judge's order), aff'd on other grounds, No. 09-56396, 2010 WL 4813674 (9th Cir. Nov. 23, 2010); Kidd v. Biggs, No. CV 01:06-1098 BLW MHW, 2009 WL 2151836, at *4 (E.D. Cal. July 16, 2009) (magistrate judge's findings and recommendations), adopted by No. 1:06-CV-1098 BLW MHW, 2009 WL 3157536 (E.D. Cal. Sept. 28, 2009); Ransom v. Rojas, No. 1:05-cv-00283 AWI GSA, 2008 WL 4640619, at *4 (E.D. Cal. Oct. 16, 2008) (declining to adopt magistrate judge's findings and recommendations); Harris v. Duc, No. CIV S-06-2138 JAM DAD, 2008 WL 3850214, at *5 (E.D. Cal. Aug. 15, 2008) (magistrate judge's findings and recommendations), adopted by No. CIV S-06-2138 JAM DAD, 2008 WL 4463604 (E.D. Cal. Oct. 02, 2008); Lay v. Marrow, No. CIV S-07-0711 JAM GGH, 2008 WL 2954185, at *7 (E.D. Cal. July 30, 2008) (magistrate judge's findings and recommendations).

In this case, unlike in Brown, plaintiff was informed in the response at the second level that allegations of staff misconduct "do not limit or restrict the availability of further relief via the inmate appeals process" and that he must submit the staff complaint appeal through the director's level to exhaust his administrative remedies. (See Lewis Decl. Ex. C at 33.) Many of the courts that have found exhaustion relying on Brown have dealt with this same language in a response and did not find that it was sufficient to meet the defendant's burden. See Cottrell, 2010 WL 4806910, at *5; Aubert, 2010 WL 3341915, at *7; Lees, 2010 WL 2353517, at *4; Foster, 2009 WL 2485369, at *5.

This court agrees that this language is insufficient to meet defendants' burden of "demonstrat[ing] that pertinent relief remained available."*fn6 Brown, 422 F.3d at 936-37. First, information provided to an inmate is relevant to the issue of whether the remedies were available as a practical matter, not whether remedies were in fact available. Cf. id. at 937 (explaining the relevancy of information provided to an inmate). Second, even if this language were relevant to the issue of whether a remedy was in fact available, this language is not sufficient to meet defendants' burden in light of contradictory information provided in the same response at the second level and in the response at the director's level. Moreover, the Bulletin confirms that no additional remedies were available.

In seeming recognition that this language will not suffice, defendants have presented supplemental evidence to support their objections to the magistrate judge's findings and recommendations. The supplemental evidence attempts to show that additional remedies were in fact available to plaintiff beyond an investigation into his allegations of staff misconduct. This evidence would contradict the Bulletin and portions of the responses. See Brown, 422 F.3d at 939 ("While Valoff argues that an appeal to the Director's level might have netted additional relief to Brown, he produced no evidence--which would have had to contradict his own directives--that it could have.").

In a supplemental declaration, D. Foston, Chief of the Inmate Appeals Branch ("IAB") of the Department, states that a director's level response could have provided the following four forms of relief from IAB: (1) a recommendation that the inmate be transferred if not appropriately housed, (2) an order that the institution amend its strip search policy or holding cell policy to come into compliance with regulation or policy, (3) an order for another investigation to ensure all issues and allegations were appropriately addressed if the IAB found that the staff misconduct investigation was conducted improperly or was insufficient, and (4) a referral for a mental health evaluation if it had not already been completed. (Defs.' Objections to Findings & Recommendations on Defs.' MTD Attachment (Supplemental Foston Decl. on Defs.' MTD) ¶ 8 (Docket No. 49).)

With respect to transferring plaintiff if not appropriately housed, the Ninth Circuit's description of the evidence in Brown is instructive:

It is clear, for example, from the Department's general directives and from its responses in this case, that only after the staff misconduct investigation, through which Brown's allegations were considered, would the Department of Corrections have determined whether Valoff's transfer to another institution was appropriate. Those documents emphasize that all investigations into staff misconduct are to take place through the staff complaint process; that the choice of relief in the event a complaint is sustained is up to the Department; and that the results of the staff complaint process are confidential. For similar reasons, any transfer of Brown because of Valoff's behavior would depend on sustaining the complaints about that behavior and thus could not come through the appeals process.

Brown, 422 F.3d at 939. Thus, despite Foster's supplemental declaration to the contrary, the evidence suggests that plaintiff could be transferred only through the staff complaint process, which plaintiff's staff complaint initiated, and not through the inmate appeals process.

That the Department's director could have changed the institution's policy on searches or holding cells or ordered a mental health evaluation does not prove that additional remedies were available because plaintiff's grievance did not pertain to these subjects. See id. at 940 ("Brown did not, however, complain about the pepper spray policy; rather, his complaint was that the policy had been violated. As Brown's grievance in no way challenged the pepper spray policy, we can conceive no reason the Director would reconsider that policy in response to Valoff's grievance.") (citing Booth, 532 U.S. at 736 n.4 ("Without the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust.") (emphasis added)).

Lastly, Foster's statement that the director could have ordered an additional investigation if it determined that the first investigation was insufficient or improperly conducted is contradicted by the response at the director's level that simply evaluated whether an investigation had been conducted. Accordingly, the moving defendants have not met their burden of "demonstrat[ing] that pertinent relief remained available." Brown, 422 F.3d at 936-37.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed February 9, 2011, are adopted, except to the extent that they rely on section 3084.9(i) of Title 15 of the California Code of Regulations;

2. The moving defendants' motion to dismiss for plaintiff's failure to exhaust administrative remedies is DENIED as to claims that defendants Whitten, Greer, Protivinsky, and Brewer conducted or allowed improper searches for the purposes of harassment, retaliation, and deliberate indifference to plaintiff's mental health in 2007 and 2008; and

3. This action is dismissed as against defendant Moore due to plaintiff's failure to prosecute.

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