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Kevin D. Brewer v. Yossi Grossbaum et al

April 15, 2013



Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on defendants' motion to dismiss this action, pursuant to unenumerated Rule 12(b) of the Federal Rules of Civil Procedure, due to plaintiff's alleged failure to exhaust administrative remedies prior to filing suit as required. Plaintiff has filed an opposition to the motion, and defendants have filed a reply. Plaintiff has also filed an unauthorized response to defendants' reply, which defendants have moved to strike.


Plaintiff is proceeding on his original complaint against defendants Elorza, Grossbaum, Peterson, and West. Therein, plaintiff alleges that defendant Chaplain Grossbaum denied him a kosher diet, and that defendants Peterson, Elorza, and West covered up Chaplain Grossbaum's denial of a kosher diet in violation of plaintiff's right to freely exercise his religion under the First Amendment and his equal protection rights under the Fourteenth Amendment. (Compl. at 3-4.)


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. See 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. See 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. See Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). "[T]o 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).

In California, prisoners may appeal "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Most such inmate appeals progress through three levels of review. See id. § 3084.7. The third level of review constitutes 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). 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).

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. That burden, however, is "very low." Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012). The defendants need only show the existence of an inmate grievance procedure that 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)).

A prisoner may be excused from complying with the PLRA's exhaustion requirement if he establishes that the existing administrative remedies were effectively made unavailable to him. Albino, 697 F.3d at 1031. For example, where prison officials improperly screen out inmate grievances, they render administrative remedies effectively unavailable to the prisoner. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such a case, "the inmate cannot pursue the necessary sequence of appeals . . . ." Id. See also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (excusing an inmate's failure to exhaust because he was precluded from exhausting administrative remedies by a warden's mistaken instruction to him that a particular unavailable document was needed for him to pursue his inmate appeal).

If the district court concludes that the prisoner has not exhausted administrative remedies 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.


According to defendants, plaintiff submitted two inmate appeals between the time defendant Grossbaum allegedly denied him a kosher diet in 2011 and the time plaintiff filed this civil action on March 16, 2012. On September 22, 2011, the appeals office received plaintiff's first inmate appeal and rejected it because plaintiff had neither signed nor dated the appeal. The office informed plaintiff that he had thirty days to make the necessary corrections and re-submit it but, according to defendants, plaintiff failed to pursue that inmate appeal any further. On November 23, 2011, the appeals office received plaintiff's second inmate appeal. The appeals office also rejected that appeal on the grounds that plaintiff did not submit it on the proper form. The appeals office informed plaintiff that he needed to submit his inmate appeal on the CDCR 602 form. Plaintiff then re-submitted that inmate appeal, but the appeals office rejected it once again on January 26, 2012 stating "[u]pon further review of your appeal issue, a determination was made . . . that you did not meet the time constraints for filing your appeal issue." (Defs.' Mot. to Dismiss (Doc. No. 29), Elorza Decl. & Ex. 1 (Doc. No. 29-4).)*fn1 Finally, plaintiff re-submitted his inmate appeal once more, but the appeals office screened out the appeal again on February 8, 2012, this time because it was a repeated filing of a previously cancelled appeal. (Defs.' Mot. to Dismiss 2-3, Lozano Decl., Elorza Decl. & Ex. 1.)

If the facts were as they are represented to be by defendants in their motion to dismiss, it would appears that prison officials acted properly in screening out plaintiff's inmate appeals because he failed to comply with the rules governing the appeals process. 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").

Specifically, prison officials may screen out appeals if they lack a signature and date, are submitted on improper forms, or are submitted in an untimely or duplicative fashion. See Cal. Code Regs. tit. 15, § 3084.6(b)(13) (appeal may be rejected if the inmate has not provided a signature and/or date on the appeal); id. § 3084.6(b)(7) (appeal may be rejected if it is missing necessary documents); id. § 3084.6(b)(10) & (14) (appeal may be rejected if it is not submitted on departmentally-approved appeal forms); id. § 3084.6(c)(4) (appeal may be cancelled if time limits for submitting the ...

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