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Armando Herrera v. Gardner

February 22, 2012

ARMANDO HERRERA, PLAINTIFF,
v.
GARDNER, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Presently before the court is defendants Lee and Borsh's ("defendants") motion to dismiss for failure to exhaust administrative remedies and for failure to state a claim pursuant to Federal Rules of Civil Procedure ("Rule") 12(b) and 12(b)(6). Dckt. No. 74. For the reasons stated herein, the undersigned recommends that the motion be granted on the ground that plaintiff failed to exhaust available administrative remedies.

I. Background

This action proceeds on plaintiff's first amended complaint filed on February 15, 2011. Dckt. Nos. 32, 36. On May 10, 2011, plaintiff filed a document titled, "Amended to Lawsuit," which the court did not screen pursuant to 28 U.S.C. § 1915A. In their June 3, 2011 motion to dismiss, defendants treat the May 10th filing as the operative pleading. See Dckt. No. 74.

However, the allegations raised in the May 10th pleading concern events that allegedly occurred after plaintiff filed his first amended complaint. See Dckt. Nos. 32, 67. Rule 15(d) permits a party to file a supplemental pleading setting out events that occurred after the date of the pleading to be supplemented. Accordingly, the court construes the May 10th filing as a supplemental pleading to plaintiff's amended complaint.

In the amended complaint, plaintiff alleges that on December 23, 2010, he was placed in administrative segregation because defendants Lee and Borsh classified him as an associate of the Mexican Mafia prison gang. Dckt. No. 32 at 1. He alleges that in 1980-81 he had a family member that dropped out of the Mexican Mafia in Old Folsom, and that prison officials had him locked up to protect him from Mexican Mafia gang members. Id. at 1-2. The amended complaint states that defendants know this, but classified plaintiff as an associate of the Mexican Mafia so that he would be housed with gang members who want to kill him. Id. at 2. In his supplemental pleading, plaintiff claims that as of April 27, 2011 he was being held in administrative segregation for his alleged association with the Mexican Mafia prison gang. Dckt. No. 67 at 1-2.

Defendants now move to dismiss on the ground that plaintiff failed to exhaust his administrative remedies prior to filing suit. Defendants also move to dismiss pursuant to Rule 12(b)(6), arguing: 1) that plaintiff failed to allege that the conditions of his confinement subjected him to a substantial risk of harm, and 2) that defendants are entitled to qualified immunity.

II. Exhaustion of Administrative Remedies

A. Exhaustion Under The PLRA

The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions [under section 1983 of this title] until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Prison conditions" subject to the exhaustion requirement have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prison . . . ." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint, but need only provide the level of detail required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case").

Prisoners who file grievances must use a form provided by the California Department of Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline the action requested. The grievance process, as defined by California regulations, has three levels of review to address an inmate's claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, § 3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Id. § 3084.1(b).

Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be "available," there must be the "possibility of some relief. . . ." Booth, 532 U.S. at 738. Relying on Booth, the Ninth Circuit has held:

[A] prisoner need not press on to exhaust further levels of review once he has received all "available" remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.

Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).

Although a motion to dismiss for failure to exhaust administrative remedies prior to filing suit is normally brought under Rule 12(b) of the Federal Rules of Civil Procedure, when ruling on such a motion requires the court to look beyond the pleadings in the context of disputed issues of fact the court must do so under "a procedure closely analogous to summary judgment." Wyatt, 315 F.3d at 1119, n.14. Because care must be taken not to resolve credibility on paper as it pertains to disputed issues of material fact, the undersigned applies the Rule 56 standards to exhaustion motions that require ...


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