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Brian Brown v. Tom Felker


January 9, 2013



Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed a civil rights action seeking relief under 42 U.S.C. § 1983. On April 11, 2012, plaintiff filed his amended complaint. (Doc. No. 14.) On April 25, 2012 the court screened the amended complaint, found that it stated a cognizable Eighth Amendment claim for failure to protect and authorized service solely upon defendant Ingwerson. (Doc. No. 15.)*fn1 This matter is now before the court on defendant Ingwerson's motion to dismiss due to plaintiff's failure to exhaust his administrative remedies prior to filing suit. Plaintiff has filed an opposition to the motion and defendant has filed a reply.


In his amended complaint plaintiff alleges as follows. On July 28, 2007, he was told to report to defendant Ingwerson*fn2 in front of the prison program office. (Am. Compl. at 3.) There, defendant Ingwerson informed plaintiff that his assistance was needed to help with consolidating prisoner bed moves. Defendant Ingwerson ordered plaintiff to stay on the yard while Ingwerson went into the program office. Plaintiff informed defendant Ingwerson that it was not his assigned yard time, but remained on the yard. As defendant Ingwerson was walking into the program office he stopped and asked plaintiff if he was aware that a disturbance may arise, to which plaintiff answered that he was not. (Id.) Minutes later a group of Hispanic inmates attacked plaintiff and several other African American inmates. (Id. at 4.) Plaintiff received two stab wounds to the chest during this attack. Plaintiff claims that defendant Ingwerson was deliberately indifferent to his safety in violation of plaintiff's Eighth Amendment rights and failed to protect him by standing aside as the attack on plaintiff took place. (Id.)


I. Defendant Sergeant Ingwerson's Motion

Counsel on behalf of defendant Ingwerson has moved to dismiss this action arguing that plaintiff failed to exhaust his administrative remedies prior to bringing suit as required. Specifically, defense counsel contends that plaintiff did not exhaust his administrative remedies because he failed to obtain a decision at the third-level of administrative review on the claim he asserts in this civil action. Defense counsel argues that the Office of Appeals, which receives and maintains inmate appeals at the third level of review, has not accepted and denied a grievance from plaintiff regarding this claim. (Def.'s Mot. to Dismiss at 2-3; Doc. No. 21.)

II. Plaintiff's Opposition

In opposition to the pending motion to dismiss plaintiff implicitly concedes that he did not pursue an inmate appeal with respect to the incident in question through the third level of administrative review prior to filing suit. Rather, plaintiff essentially argues that the appeals coordinator improperly screened out his inmate appeals, thereby blocking him from pursuing his administrative remedies. Plaintiff contends that in responding to his inmate appeals the appeals coordinator did not provide sufficiently detailed instructions as to how plaintiff should correct any deficiency in the appeal forms. Plaintiff also suggests that prison officials' refusal to respond to a citizen's complaint filed by his mother prevented him from exhausting administrative remedies. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 2-6 ; Doc. No. 25.)

III. Defendant's Reply

Defense counsel asserts that the appeals coordinator properly screened out and rejected plaintiff's inmate appeals because they were not timely filed and that plaintiff has failed to show that he did not have the opportunity to file an inmate appeal within the prescribed time. Defense counsel also argues that plaintiff has failed to provide any evidence that the appeals coordinator screened out his inmate appeal for any improper reason. Finally, defense counsel points out that any reliance by plaintiff on regulations currently governing the inmate appeals process is misplaced because those procedures did not apply in 2007, the year the incident and the inmate appeal submissions in question took place. (Def.'s Reply to Opp'n to Mot. to Dismiss at 2-6; Doc. No. 26.)


I. Legal Standards Applicable to a Motion to Dismiss Pursuant to Non-Enumerated Rule 12(b) By the Prison Litigation Reform Act of 1995 ("PLRA"), Congress amended 42 U.S.C. § 1997e to provide that "[n]o 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 any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The 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." Porter v. Nussle, 534 U.S. 516, 532 (2002).

The United States Supreme Court has ruled that exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. Id. at 741 n.6. Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). The Supreme Court has also held that "to properly exhaust administrative remedies prisoners 'must complete the administrative review process in accordance with the applicable procedural rules,' [] - rules that are defined not by the PLRA, but by the prison grievance process itself." Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) ("The California prison system's requirements 'define the boundaries of proper exhaustion.'") (quoting Jones, 549 U.S. at 218).

A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). In 2007, when the events in question occurred, California's Department of Corrections provided a four-step grievance process for prisoners who sought review of an administrative decision or perceived mistreatment. See Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 2009). That process provided that within fifteen working days of "the event or decision being appealed," the inmate must ordinarily have filed an "informal" appeal, through which "the appellant and staff involved in the action or decision attempt to resolve the grievance informally." Cal. Code Regs., tit. 15, §§ 3084.5(a), 3084.6(c) (2007). The informal level response must have been completed within ten working days. Id. § 3084.6(b)(1). However, this informal level of review was waived for appeals of alleged misconduct by a departmental peace officer. Id. §§ 3084.5(a)(3)(G), 3084.1(e). If the inmate was required to file an informal appeal and was not satisfied with the resolution of his grievance, he then had fifteen working days to proceed to the first formal level of review, normally conducted by an appeals coordinator. Id. §§ 3084.5(b), 3084.6(c). Following the first formal level of review were the second level of review, providing review by the institution's head, and the third level of review in which review was conducted by a designee of the Director of the Department of Corrections. The result at the third level of review constituted the decision of the Secretary of the California Department of Corrections and Rehabilitation and exhausts a prisoner's administrative remedies. See id. § 3084.7(d)(3).*fn3

The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative defense. See Jones, 549 U.S. at 216 ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints."); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003). The defendants bear the burden of raising and proving the absence of exhaustion. Wyatt, 315 F.3d at 1119. The defendant's burden of establishing an inmate's failure to exhaust administrative remedies, however, has been characterized by the Ninth Circuit as "very low." Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012). The defendant need only show the existence of a grievance procedure the plaintiff did not use. Id. (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996) and Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005)).

In order to be excused from exhausting administrative remedies as required, a plaintiff must establish that the existing administrative remedies were effectively unavailable to him. Albino, 697 F.3d at 1031. In this regard, the Ninth Circuit has held that inmates may be excused from complying with the PLRA's exhaustion requirement where improper screening of inmates' grievances renders administrative remedies effectively unavailable, causing a failure to exhaust. Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such a case, "the inmate cannot pursue the necessary sequence of appeals, and administrative remedies are therefore plainly unavailable." Id. See also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (holding that inmate's failure to exhaust his administrative remedies was excused because he took reasonable steps to present his claim to prison officials and was precluded from exhausting his administrative remedies, not through his own fault but due to the prison warden's mistake in referring him to an inapplicable Program Statement).

If the district court concludes that the prisoner has not exhausted administrative remedies with respect to a claim presented in a civil action and is not excused from doing so, "the proper remedy is dismissal of the claim without prejudice." Wyatt, 315 F.3d at 1120. See also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). On the other hand, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.

II. Discussion

In moving to dismiss, counsel for defendant Ingwerson argues that plaintiff failed to exhaust his administrative remedies because he did not properly file his inmate appeal with respect to the incident in question. In his first inmate appeal submitted on September 23, 2007, plaintiff alleged staff misconduct during the July 28, 2007 incident in the prison yard. (Pl.'s Opp'n, Ex. 1 at 1-2.)*fn4 However, under the applicable regulations plaintiff had only fifteen working days, until August 17, 2007, to file his initial grievance with respect to the July 28, 2007 incident. See Cal. Code Regs., tit. 15, §§ 3084.5(a)(3)(G), 3084.6(c) (2007). Defendant has established that plaintiff's first inmate appeal was rejected as untimely and was never submitted to the highest level of review as required. (Def.'s Mot. to Dismiss at 2-3.) Because defendant Ingwerson has carried his burden of raising and proving the absence of exhaustion, plaintiff must establish that the existing administrative remedies were effectively unavailable to him. Albino, 697 F.3d at 1031.

The time limit for submitting an inmate appeal provided under the governing California regulations may be exceeded if there was no opportunity for the appellant to file the appeal within the time constraints provided. Cal. Code Regs., tit. 15, §§ 3084.6(c) and 3084.3(c)(6). Here, plaintiff has not done so.*fn5 Indeed, plaintiff does not even argue that he lacked the opportunity to file a timely inmate appeal. Rather, he contends only that the improper screening out of his grievances excuse his failure to properly exhaust. In this regard, plaintiff contends that the appeals coordinator blocked his attempts to exhaust his administrative remedies and failed to provide him with proper instructions on the screening forms.

It is correct that in 2007 the governing regulations provided that upon screening or rejecting an inmate appeal, the appeals coordinator was to explain in writing why the appeal was being rejected. Cal. Code Regs., tit. 15, § 3084.3(d) (2007). An inmate appeal could properly be rejected if, among other reasons, it was untimely, duplicated a previous appeal, concerned an anticipated action or decision, or was incomplete or necessary supporting documents were not attached. Id. §§ 3084.3(c)(1)-(8).

As noted above, plaintiff filed his first level inmate appeal on September 23, 2007. (Pl.'s Opp'n, Ex. 1 at 2-4.) The appeals coordinator screened that appeal three days later on September 26, 2007, well within the minimal time period of ten working days provided for the review of such an appeal. (Id.); Cal. Code Regs., tit. 15, § 3084.6(b) (2007). The appeals coordinator rejected that inmate appeal because it was filed beyond the fifteen working day time limit, concerned an anticipated action or decision in pending prison disciplinary proceedings*fn6 , and the appeal did not include the necessary documentation. (Pl.'s Opp'n, Ex. 3 at 1.)

Plaintiff filed a second inmate grievance on September 30, 2007. (Pl.'s Opp'n, Ex. 1 at 5.) The appeals coordinator screened out this grievance on October 2, 2007, again well within the time period provided for review. (Id.); Cal. Code Regs., tit. 15, § 3084.6(b) (2007). In his second grievance plaintiff did not address the disciplinary action pending against him but rather merely stated that he wanted his first inmate appeal processed as a staff complaint. (Pl.'s Opp'n, Ex. 1 at 5.) This second grievance was screened out once because plaintiff's prison disciplinary hearing was still pending and due to his failure to attach required documentation and a second time because the grievance was duplicative of plaintiff's first inmate appeal which had already been rejected as untimely. (Pl.'s Opp'n, Ex. 3 at 2,3.)

Upon this review of the screening forms issued in response to plaintiff's inmate grievances, the court concludes that the appeals coordinator explained why those inmate appeals were deemed unacceptable and rejected in a manner which complied with the governing California regulations. Thus, this court cannot say that either of plaintiff's inmate appeals were improperly screened in a manner that rendered administrative remedies effectively unavailable to him. Plaintiff's initial grievance regarding the incident in question was submitted almost a full month after the time for doing so under the governing regulations had expired. See Woodford, 548 U.S. at 83-84 (A prisoner does not satisfy the PLRA exhaustion requirement "by filing an untimely or otherwise procedurally defective administrative grievance or appeal"); see also Griffin v. CDCR, No. CV 11-3458 DOC (JCG), 2012 WL 3689669, at *2 (C.D. Cal. July 26, 2012) ("At the time of the alleged assault, California inmates were required to submit inmate appeals within fifteen working days of the event or decision being appealed. . . . As such, Plaintiff's severely untimely appeal did not satisfy his obligation to properly exhaust his claim."); Porter v. Howard, No. 10cv1817 JLS (PCL), 2012 WL 2837278, at *8 (S.D. Cal. Feb 27, 2012) (recommending dismissal because plaintiff's sole inmate grievance regarding the incident in question was filed long after the fifteen days from the offending event provided by the regulations and his correspondence filed with other state and federal agencies did not satisfy that requirement); Jones v. Washington, No. C 09-3003 CW, 2011 WL 4434859, at *4 (N.D. Cal. Sept. 23, 2011) (Where plaintiff's inmate appeal did not reach the appeals coordinator within the fifteen day period and plaintiff failed to explain why the appeal was timely, the court found that his inmate appeal was properly screened out, no exception to the exhaustion requirement applied and his civil action was dismissed).

Here, in light of plaintiff's untimely initial grievance, nothing that the appeals coordinator did after rejecting the first submission as untimely is relevant to the resolution of the pending motion.

Finally, plaintiff argues that the prison officials' failure to respond to a citizen's complaint filed by his mother somehow prevented him from exhausting administrative remedies.

(Pl.'s Opp'n at 5-6.) However, it is inmates, not their families, who have the right to file inmate appeals. Cal. Code Regs., tit. 15, § 3084(a) (2007).*fn7


For the reasons set forth above, the court finds that defendant has met his burden of demonstrating that plaintiff failed to exhaust his administrative remedies prior to filing suit as required by 42 U.S.C. § 1997e(a). Plaintiff has failed to respond by showing that he exhausted all of the administrative remedies that were in fact made available to him. Therefore, IT IS HEREBY RECOMMENDED that defendant's motion to dismiss pursuant to unenumerated Rule 12(b) (Doc. No. 21) be GRANTED and that this action be dismissed without prejudice.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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