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Chavez v. Milligan

United States District Court, N.D. California

December 18, 2019

JOEL CHAVEZ, Plaintiff,
v.
D. MILLIGAN, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; DISMISSING COMPLAINT WITH LEAVE TO AMEND; GRANTING MOTION TO STRIKE AND DENYING MOTION FOR EXTENSION OF TIME RE: DKT. NOS. 15, 25, 28

          JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42 U.S.C. § 1983. He alleges that Defendants, three correctional officers at Pelican Bay State Prison (“PBSP”), repeatedly punched him in the face and head and banged his head on the ground while escorting him from his cell to the yard, causing him severe injuries. He further alleges that he was in handcuffs and complying with orders.

         The Court reviewed the complaint pursuant to 28 U.S.C. § 1915A(a) and found that it, when liberally construed, states a claim upon which relief could be granted for the violation of Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. Defendants have filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff filed an opposition, and Defendants filed a reply brief. Plaintiff also filed a motion for an extension of time to file a sur-reply and a sur-reply, which Defendants have moved to strike.[1]

         DISCUSSION

         Defendants move to dismiss on the grounds the Plaintiff did not exhaust his available administrative remedies before filing suit, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Failure to exhaust under the PLRA is “an affirmative defense the defendant must plead and prove.” Jones v. Bock, 549 U.S. 199, 204, 216 (2007). Prisoners are not required to plead or demonstrate exhaustion in their complaints. Id. at 215-17. As a result, defendants must produce evidence proving failure to exhaust, and can move for summary judgment based upon such evidence. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). “In the rare event that a failure to exhaust is clear on the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Id.

         In the complaint, Plaintiff alleges that he exhausted his available administrative remedies by filing administrative grievances through the highest level of administrative review, and he attached the relevant grievances as exhibits. (ECF No. 1 at 2, 10, Exh. D.) Defendants argue that it is clear from the attachments that Plaintiff did not exhaust his administrative remedies because his grievance was “canceled” for being untimely at the third (and final) level of administrative review. See generally Woodford v. Ngo, 548 U.S. 81, 84 (2006) (the PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal"). Prison regulations required Plaintiff to file his grievance within thirty days from the date of the alleged assault, i.e. by November 23, 2017, see 15 Cal. Code Regs. §§ 3084.8(a), (b)(1)-(3), but he did not file it until January 28, 2018. (ECF No. 1 at 34).

         Plaintiff asserted in the grievance, however, that that he delayed in filing it because he feared retaliation if he filed a grievance against Defendants for beating him. (See ECF No. 1 at 36.) He ultimately filed the grievance after he was transferred to California State Prison - Sacramento. (Id. at 34.) Plaintiff also alleges in the complaint that Defendants beat him in retaliation for what they believed (incorrectly, according to Plaintiff[2]) to be his participation in an attack on their fellow guards and attempted murder of a sergeant. (Id. at 8.) Plaintiff further alleges that after the beating, he continued to fear for his safety, and that the beating was part of “continuous harassment” by officials, although he does not describe any other conduct besides the beating that constituted harassment. (Id. at 8.)[3]

         The threat of retaliation for reporting an incident can render the prison grievance process effectively unavailable and thereby excuse a prisoner's failure to exhaust administrative remedies under the PLRA. See McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015). The test for whether exhaustion may be excused on this basis is as follows:

To show that a threat rendered the prison grievance system unavailable, a prisoner must provide a basis for the court to find that he actually believed prison officials would retail ate against him if he filed a grievance. If the prisoner makes this showing, he must then demonstrate that his belief was objectively reasonable. That is, there must be some basis in the record for the district court to conclude that a reasonable prisoner of ordinary firmness would have believed that the prison official's action communicated a threat not to use the prison's grievance procedure and that the threatened retaliation was of sufficient severity to deter a reasonable prisoner from filing a grievance.

Id. at 987. Based upon Plaintiff's allegations, he knew that Defendants and other PBSP officials believed that he had attempted to murder their colleague, knew that they were willing to resort to a violent attack upon him to retaliate, and he was suffering the after-effects of the beating, including fearing further reprisal. And when Plaintiff did file the grievance, he was at another prison, away from the officials who had beaten him. These allegations plausibly support an inference that Plaintiff actually believed that prison officials would retaliate against him if he filed a grievance, particularly one that contained serious allegations against them.

         Plaintiff's allegations, however, do not meet the objective prong of the McBride test. In McBride, the plaintiff alleged that defendants had beaten him and told him he was “lucky” not to have been beaten more severely; plaintiff then asserted that his subsequent grievance about the beating was untimely because he feared retaliation if he filed it. McBride, 807 F.3d at 985. The court held that this did not satisfy the objective prong of the test:

Even if McBride actually viewed the statements as threatening, the issue before us is whether the guards' statements could reasonably be viewed as threats of retaliation if McBride filed a grievance. As the district court recognized, the statements themselves make no reference to a grievance or to anything else, beyond the preexisting hostility, that might trigger a future attack on the part of the guards.

Id. at 988. Here, there is likewise no allegation of any reference by Defendants or other prison official to the filing of a grievance, and indeed here, the allegations of retaliation are arguably thinner than McBride because Plaintiff does not allege any statements by Defendants that could be viewed as a threat. There is no allegation of anything beyond the attack itself and preexisting hostilities between Plaintiff and prison officials. Under McBride, that is not sufficient to show that a reasonable prisoner of ordinary firmness would have believed that prison officials communicated a threat that if he filed a grievance, he would suffer retaliation, and that such retaliation would be sufficiently severe to deter a reasonable prisoner from filing ...


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