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Kevin Bartholomew v. A.V. Solorzano

December 14, 2012

KEVIN BARTHOLOMEW, PLAINTIFF,
v.
A.V. SOLORZANO, DEFENDANT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Plaintiff, an inmate of the California Department of Corrections and Rehabilitation ("CDCR"), proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) Plaintiff asserts claims under the First and Eighth Amendments against defendant Solorzano, the sole named defendant. Defendant has moved to dismiss the complaint on the ground that plaintiff failed to exhaust administrative remedies before filing suit. (Dkt. No. 18.) Plaintiff opposes the motion (Dkt. Nos. 19, 22) and defendant has filed a reply (Dkt. No. 20).

I. Allegations of the Complaint

The events giving rise to this lawsuit occurred at California State Prison- Solano (CSP-Solano), where plaintiff was incarcerated and defendant was employed as a correctional officer at all times relevant. On September 1, 2011, while processing plaintiff's outgoing mail, defendant made comments about inmates' rectums and stated to plaintiff: "Bartholomew have you ever put anything up your ass, you know what they say about prison[.]" (Dkt. No. 1 at 5, 10.*fn1 ) On September 2, 2011, plaintiff filed an inmate grievance reporting this incident and alleging that defendant had sexually harassed him. (Id.)

On September 8, 2011, defendant asked plaintiff to withdraw the grievance but plaintiff refused to do so. (Dkt. No. 1 at 5.) About an hour later, plaintiff asked defendant for permission to take a shower. (Id.) Although defendant was letting other inmates into the shower, defendant refused to allow plaintiff to shower, stating, "you write me up and expect a shower lock it up[.]" (Id.) Defendant denied plaintiff showers on three more occasions that month. (Id.)

On March 19, 2012, defendant entered plaintiff's cell and broke plaintiff's dentures and clock, stating "maybe next time you will think twice about filing a 602[.]". (Dkt. No. 1 at 17.) Without his dentures, plaintiff was injured and suffered pain when eating. (Id.)

Plaintiff commenced this federal action on April 26, 2012. (See Dkt. No. 1.) In a screening order dated June 8, 2012, this court found that plaintiff had sufficiently stated claims as follows: (1) "that Solorzano violated his rights under the First Amendment by restricting plaintiff's shower access in retaliation for plaintiff's sexual harassment grievance against Solorzano[;]" and (2) "that Solorzano violated his rights under the Eighth Amendment by destroying his dentures and therefore subjecting him to the unnecessary infliction of pain." (Dkt. No. 8 at 3.)

II. Exhaustion of Administrative Remedies

A. Legal Standard

Pursuant to the Prison Litigation Reform Act ("PLRA"): No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in a jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). Compliance with the exhaustion requirement is mandatory. Booth v. Churner, 532 U.S. 731, 739, 741 (2001) (holding that prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process).

The State of California's prison regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See 15 Cal. Code Regs. §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a prisoner has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All steps must be completed before a civil rights action is filed, unless there is an exception; exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). In order to properly exhaust in compliance with the exhaustion requirement of section 1997e(a), a prisoner must comply with applicable procedural rules and time requirements. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).

"The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Jones v. Bock, 549 U.S. 199, 218 (2007); see also McCollum v. CDCR, 647 F.3d 870, 876 (2011) ("Whether an inmate's claim has been exhausted is determined by reference to the prison's own grievance requirements, which necessitate that the inmate "describe the problem and the action requested." (internal quotations and citations omitted). In California,

A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to ...


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