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Andrew Rick Lopez v. D. Peterson

March 9, 2012

ANDREW RICK LOPEZ, PLAINTIFF,
v.
D. PETERSON, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This action is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(17). See 28 U.S.C. § 636(b)(1). Presently before the court are defendants Singletary, Wright, Haas, Diggs, Babbich, Baughman, McClure, South- Gilliam, Reyes, D. Peterson, Holmes, C.J. Peterson, Castro, Park, Jennings and Runnels' ("defendants") motion to dismiss (Docket No. 333), and plaintiff's motion for appointment of counsel (Docket No. 344). For the reasons stated below, defendants' motion to dismiss must be granted in part and denied in part. In addition, plaintiff's motion for appointment of counsel must be denied.

I. Background

This action proceeds on plaintiff's October 7, 2009 second amended complaint against the sixteen defendants named above. See Dckt. Nos. 319, 323, 332. The complaint asserts claims based on twelve distinct incidents:*fn1

(1) After Plaintiff arrived at High Desert State Prison (HDSP) on January 14, 1997, non-Defendant correctional staff intentionally withheld some of Plaintiff's legal property. (CR 319 ¶¶ 23-25.) On February 2, 1997, Singletary filed a false declaration that claimed Plaintiff received all of his property, and Castro, D. Peterson, McClure, Diggs, Jennings, Wright, and Runnels failed to properly train or supervise the unnamed staff that disposed of Plaintiff's property. (CR 319 ¶¶ 26, 80, 95);

(2) Between August 1997 and November 1999, Castro and D. Peterson wrongfully maintained lockdown conditions at the prison. (CR 319 ¶¶ 67, 70, 122, 124);[*fn2 ]

(3) On August 12, 1997, Wright wrongfully deprived Plaintiff of some of his legal property. (CR 319 ¶¶ 43, 72);

(4) On August 21, 1997, Wright falsely accused Plaintiff of participating in a riot in Rules Violation Report number 97-08-066, which was later dismissed. (CR 319 ¶¶ 43, 72(b), 96, 120) Furthermore, Plaintiff contends that in 1998, Wright, Reyes, and C. Peterson wrongfully caused Rules Violation Report number 97-08-066 to be reissued, before the charge was again dismissed (CR 319 ¶¶ 72(c), 73(b), 89-91);

(5) On August 27, 1997, Babich violated Plaintiff's due process rights by failing to provide Plaintiff with notice of a hearing, at which Plaintiff's job assignment was changed from paid to unpaid. (CR 319 ¶ 103);

(6) Between February 1998 and March 1999, Park failed to provide Plaintiff with dental care. (CR 319 ¶¶ 82, 102);

(7) On May 5, 1998, Reyes denied Plaintiff's request for a transfer because Plaintiff had a pending rules violation hearing. (CR 319 ¶¶ 73(a), 101(a));

(8) On June 1, 1998, Holmes wrongfully issued Plaintiff Rules Violation Report 98-06-009 after Plaintiff refused to permit Holmes to photograph his tattoos. (CR 319 ¶ 74) Furthermore, Plaintiff alleges that C. Peterson unlawfully reduced the charge from a serious rules violation to administrative matter prior to the hearing for Rules Violation Report 98-06-009, and C. Peterson excluded relevant evidence during the rules violation hearing. (CR 319 ¶¶ . . . 71, 93 . . . 111, 112) Plaintiff contends that D. Peterson conspired with C. Peterson to affect the outcome of Plaintiff's rules violation hearing, and Castro and Jennings learned of Plaintiff's allegations though the administrative grievances process. (CR 319 ¶¶ . . . 71, 93 . . . 111, 112);[*fn3]

(9) On January 5, 1999, Babich, Baughman, and Diggs wrongfully failed to reduce Plaintiff's classification score. (CR 319 ¶ 66) On January 28, 1999, Reyes retaliated against Plaintiff by wrongfully raising his classification score by twelve points. (CR 319 ¶¶ 64, 73(d), 101(b)) Plaintiff claims that Runnels and Jennings learned of Plaintiff's allegations against Reyes though the administrative grievances process. (CR 319 ¶¶ [101*fn4 ](b), 111, 112);[*fn5 ]

(10) On February 1, 1999, inmate-Garcia gave Reyes some of Plaintiff's legal documents, and Reyes wrongfully refused to return the property to Garcia. (CR 319 ¶ 46);

(11) On February 25, 1999, Haas falsely identified Plaintiff as a "shot caller." (CR 319 ¶ 47);

(12) On March 16, 1999, McClure, Diggs, Wright, and South-Gilliam retaliated against Plaintiff by unlawfully placing him on C-status. (CR 319 ¶¶ 43(f), 72(d), 75, 76(c), 77(c), 78(c), 79, 97, 105, 107, 108).[*fn6 ] Dckt. No. 333 at 4-5.

II. Defendants' Motion to Dismiss

Defendants move to dismiss the complaint for failure to state a claim and for failure to exhaust administrative remedies pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(6) and 12(b). Dckt. No. 333.

On April 26, 2011, plaintiff filed a document titled "Notice of Defendants' Intentional Fraud on the Court and the Public. Request for Counsel. And Request for Sanctions." Dckt. No. 335. In this document, plaintiff (1) requested counsel; (2) requested that the court sanction defendants for fraud by revoking defense counsel's license to practice law; (3) requested extensions of time to respond to the motion to dismiss because he was not in possession of all of his property; and (4) substantively opposed the motion to dismiss, with citations and quotations from recent case law, CDCR regulations, and numerous docket entries in this action. See id. at 1, 2 n.1, 3-16.

Because plaintiff's April 26th filing addressed the merits of defendants' motion to dismiss, but also requested an extension of time to oppose the motion to dismiss, defendants sought clarification from the court. Dckt. No. 336. Accordingly, on May 27, 2011, the court granted plaintiff 30 days to either file an opposition to the motion to dismiss, or a statement indicating that his April 26th filing would serve as his opposition brief. Dckt. No. 337.

The court also denied plaintiff's requests for counsel and sanctions.*fn7 Id.

In response, plaintiff filed a "Request for Order Requiring that his Legal Property Be Provided." Dckt. No. 339. He also requested counsel, and asked for clarification of the May 27th order, stating that it left him "very confused." Dckt. No. 340. Plaintiff followed up with another filing, indicating that his April 26th filing would serve as his opposition brief, but describing that decision as "forced," because the court would not appoint counsel, he did not have access to his property, and he did not want to risk dismissal of his case. Dckt. No. 341.

Thereafter, plaintiff was granted a 30 day extension of time to file an amended opposition brief. Dckt. No. 342 (Order dated September 13, 2011). The court also informed plaintiff that, if needed, he could file a request more time along with an explanation as to why he had been unable to complete the opposition brief in the time allowed. Dckt. No. 342. Plaintiff was also informed that if he failed to seek an additional extension of time, his April 26th filing would serve as his opposition brief. Id. Plaintiff did not seek an additional extension of time.*fn8

Accordingly, the April 26th filing is deemed to be plaintiff's opposition to defendants' April 14th motion to dismiss.

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 v. Terhune, 315 F.3d 1108, 1119, n.14 (9th Cir. 2003). 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 consideration of materials extrinsic to the complaint. See Chatman v. Felker, No. Civ. S-06-2912 LKK EFB, 2010 WL 3431806, at *2-3 (E.D. Cal. Aug. 31, 2010).

Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119. To bear this burden: a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include 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 in this case . . . . With regard ...


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