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Tanori v. Biter

United States District Court, E.D. California

June 30, 2014

SERGIO M. TANORI, Plaintiff,
v.
M. BITER, et al., Defendants.

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF Nos. 1, 15)

STANLEY A. BOONE, Magistrate Judge.

Plaintiff Sergio M. Tanori is appearing pro se and informa pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff's complaint, filed November 21, 2013. (ECF No. 1.) On April 21, 2014, the Court screened Plaintiff's complaint and issued an order to show cause why this action should not be dismissed for failure to exhaust administrative remedies. (ECF No. 11.) After receiving an extension of time, Plaintiff filed a response to the order to show cause on June 23, 2014. (ECF No. 15.)

I.

RELEVANT COMPLAINT ALLEGATIONS

Plaintiff contends that after being subjected to excessive force on January 11, 2014, he filed a letter and inmate appeal (602) on January 31, 2013 to Special Agent Dunlop. (Compl. ¶ 68, ECF No. 1.) On March 29, 2013, Plaintiff sent a follow-up letter to the Office of Internal Affairs requesting the status of his appeal. ( Id. at ¶ 69.) When Plaintiff did not receive a response from the Office of Internal Affairs, on April 27, 2013, he submitted an inmate appeal to the appeals coordinator at Kern Valley State Prison asking that the appeal sent on January 31, 2013 be processed. ( Id. at ¶ 71.)

On May 2, 2013, Plaintiff received a response that there was no record of any appeal being submitted on or about January 31, 2013. ( Id. at ¶ 72.) Plaintiff filed a second inmate appeal and was interviewed by Defendant Seaman on May 31, 2013. ( Id. at ¶¶ 73, 74.) Plaintiff received a response and filed an appeal that he was dissatisfied with the response because nothing was done to seriously investigate Plaintiff's allegations regarding the use of force. ( Id. at ¶¶ 75, 76)

On July 11, 2013, Defendant Lozano sent Plaintiff a letter requesting that he remove his citizen complaint form from the appeal. ( Id. at ¶ 77.) Plaintiff removed the citizen's complaint form and returned the appeal for third level review. ( Id. at ¶ 78.)

On September 10, 2013, Defendant Lozano and three other individuals came to conduct an interview with Plaintiff regarding the incident. ( Id. at ¶ 79.) Plaintiff states they were attempting to discourage or prevent him from reporting the use of force and his appeal was illegally cancelled on September 27, 2013 by Defendant Pimental. ( Id. at ¶ 80.)

On October 4, 2013, Defendant Seaman sent Defendant Biter, Kunz, and Rodriguez a memorandum regarding the incident. ( Id. at ¶ 82.) Plaintiff alleges that the evidence clearly shows that Defendants Biter, Vera, Goss, Tyson, Marta, Lozano, Pimental, Seaman, Kunz, and Rodriguez have effectively prevented Plaintiff from timely using the available administrative remedies. ( Id. at ¶ 86.)

II.

LEGAL STANDARD

Pursuant to the Prison Litigation Reform Act of 1996, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock , 549 U.S. 199, 211 (2007); McKinney v. Carey , 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner , 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle , 435 U.S. 516, 532 (2002).

The California Department of Corrections and Rehabilitation has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15, § 3084.1. There are three levels of review and the process is initiated by submitting a CDCR Form 602. Id. at §§ 3084.2(a), 3084.7. Appeals must be submitted within thirty calendar days of the event being appealed, and the process is initiated by submission of the appeal to the first level of review. Id. at §§ 3084.7(a), 3084.8(b). An inmate is required to adhere to the appeal filing time constraints. Id. at § 3084.1. In order to satisfy section 1997e(a), California state ...


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