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Fonseca v. Cdcr

United States District Court, S.D. California

June 10, 2015

CDCR, et al., Defendants.


BARBARA L. MAJOR, Magistrate Judge.

This Report and Recommendation is submitted to United States District Judge Larry A. Burns pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and 72.3(f) of the United States District Court for the Southern District of California. For the following reasons, the Court RECOMMENDS that Defendants' Motion for Summary Judgment for failure to exhaust administrative remedies be GRANTED and the case dismissed. Alternatively, the Court RECOMMENDS that Defendants' Motion to Dismiss for failure to state a claim be GRANTED WITH LEAVE TO AMEND.


Plaintiff Roderick Olaf Fonseca, a state prisoner proceeding pro se and in forma pauperis, initiated this action on April 3, 2014 when he filed a complaint under the Civil Rights Act, 42 U.S.C. § 1983, against Defendants California Department of Corrections and Rehabilitations ("CDCR") and Jeffrey A. Beard, alleging that they violated his civil rights by instituting a new Jewish Kosher Diet Program ("JKDP"). ECF No. 1. Plaintiff alleges that on July 29, 2013, Calipatria State Prison implemented a new JKDP menu in which "all meat products" were removed "from the menu except for (1) one dinner a week and (1) one lunch a week." Id. at 3. Plaintiff states that the prison continued to provide non-kosher inmates with a significantly larger number of meals containing meat products. Id . Plaintiff asserts that the new JKDP menu violates his rights as an observant Jewish inmate under the First and Fourteenth Amendments to the United States Constitution and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). Id . Plaintiff requests general and punitive damages in amounts "to be determined at trial" and seeks an injunction to reinstate all meat products to the JKDP. Id. at 7.

On December 12, 2014, Defendants filed a motion to dismiss for failure to state a claim and for immunity under the Eleventh Amendment and motion for summary judgment for failure to exhaust administrative remedies. ECF No. 9. On December 17, 2014, the Court issued an "Order Providing Plaintiff Notice of Defendants' Motion for Summary Judgment Re Failure to Exhaust Administrative Remedies" in which the Court advised Plaintiff of the requirements for opposing Defendants' summary judgment motion. ECF No. 10. The Court ordered Plaintiff to file his opposition to Defendants' motion by January 30, 2015, and Defendants to file their reply by February 6, 2015. Id. at 3. On January 6, 2015, the Court granted Plaintiff's request for additional time to oppose the motions and ordered Plaintiff to file his opposition to Defendants' motions by March 2, 2015, and Defendants to file their reply by March 16, 2015. ECF No. 13 at 2.

Plaintiff filed his opposition on February 27, 2015, arguing that his complaint properly stated a cognizable claim, that Defendants are not immune under the Eleventh Amendment, and that he has exhausted all of his administrative remedies. ECF No. 14 ("Oppo."). On March 3, 2015, Defendants filed a reply to Plaintiff's opposition, re-asserting their claims and arguing that the Court should not permit Plaintiff to add new allegations in his opposition that were not included in his Complaint. ECF No. 15 ("Reply").


In his complaint, Plaintiff alleges that CDCR and Jeffrey A. Beard, the Secretary of CDCR, violated his civil rights under the First Amendment, RLUIPA, and the Fourteenth Amendment in connection with a state-wide change in the JKDP implemented on July 29, 2013. ECF No. 1. Plaintiff states that the new JKDP only provides Kosher inmates with meat products once a week at dinner and once a week at lunch, while continuing to provide meat product dinners to non-Kosher inmates. Id. at 3. Plaintiff claims that this change forces Jewish inmates to become vegetarians and violates the Equal Protection Clause. Id.



Defendants move for summary judgment on the grounds that Plaintiff failed to exhaust his administrative remedies prior to filing the instant action. ECF No. 9-1 ("Mot.") at 14-23.

A. Exhaustion Under the Prisoner Litigation Reform Act

Section 1997e(a) of the Prison Litigation Reform Act ("PLRA") of 1995 provides:

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 any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). "Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits." Porter v. Nussle, 534 U.S. 516, 524 (2002). The United States Supreme Court has confirmed that exhaustion is a mandatory prerequisite to filing suit in federal court. Id . Failure to exhaust may not be waived. See Woodford v. Ngo, 548 U.S. 81, 85 (2006) ("[e]xhaustion is no longer left to the discretion of the district court"). The United States Supreme Court has stated that "[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007).

To prevail on a motion for summary judgment, the defendant must prove that the plaintiff failed to properly exhaust available administrative remedies. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014); see also Jones, 549 U.S. at 216 (inmates are not required to specially plead or demonstrate exhaustion in his or her complaint because failure to exhaust is an affirmative defense under the PLRA). The defendant cannot demonstrate an absence of exhaustion unless some relief remains available. Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005). Therefore, the defendant must produce evidence that the plaintiff did not properly exhaust a remedy that is available "as a practical matter" in that it must be "capable of use" or "at hand." Albino, 747 F.3d at 1171.

Once the defendant meets that burden, the plaintiff must "come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Id. at 1172. The Ninth Circuit has consistently held that administrative remedies were unavailable where the inmate was thwarted by affirmative misconduct or obstruction by prison officials. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (screening out an inmate's administrative grievance for improper reasons rendered administrative remedies unavailable); see also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (a prison warden's mistake in misdirecting the inmate rendered administrative remedies unavailable). However, an inmate who did not make any attempt to properly utilize the prison grievance system cannot sidestep the exhaustion requirement by arguing that it now would be futile to attempt to exhaust within the prison system. Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) ("we stress the point... that we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise."); see also Woodford, 548 U.S. at 100 ("if the party never pursues all available avenues of administrative review, the person will never be able to sue in federal court.").

The Supreme Court in Woodford has held that an inmate cannot satisfy the PLRA exhaustion requirement by "filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84. "[T]o properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with applicable procedural rules, '" defined by the specific prison grievance process in question. Jones, 549 U.S. at 218 (quoting Woodford, 548 U.S. at 88). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford, 548 U.S. at 90-91. This requirement serves PLRA's purpose because it "gives prisoners an effective incentive to make full use of the prison grievance process and accordingly provides prisons with a fair opportunity to correct their own errors." Id. at 94. Therefore, an inmate incarcerated in CDCR must comply with all the regulations and procedures of California's prison administrative appeals system to properly exhaust his claim. See Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) ("[t]he California prison system's requirements define the boundaries of proper exhaustion'" for inmates bringing suit in California).

B. California Regulations

To properly exhaust available remedies for an administrative decision or perceived mistreatment in California, an inmate must proceed through three formal levels of review. Cal. Code Regs. tit. 15, §§ 3084.1-3084.9; see also Dukes v. Garcia, 2015 WL 1119487, at *2 (E.D. Cal. Mar. 11, 2015). The three levels include: "(1) a first level appeal, to be conducted by the division head or his or her designee"[1]; "(2) a second level appeal, to be conducted by the hiring authority or his or her designee; and (3) a third level appeal, to be conducted by the Office of Appeals in Sacramento, California (formerly the Inmate Appeals Branch)." Jones v. Paramo, 2013 WL 4517829, at *6 (S.D. Cal. Aug. 19, 2013); Cal. Code Regs. tit. 15, §§ 3084.1, 3084.7. "The third level review constitutes the decision of the Secretary of the California Department of Corrections and Rehabilitation on an appeal" and "exhausts administrative remedies." Id . § 3084.7(d)(3).

An appeal may be cancelled if it is untimely. Id . § 3084.6(c)(4). Once cancelled, the appeal shall not be accepted unless a determination is made that the cancellation was made in error or new information is received making the appeal eligible for further review. Id . §§ 3084.6(e), 3084.6(a)(3). A cancellation does not exhaust an ...

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