Ayala v. Salazar

          REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT [ECF NO. 7]

          Hon. Jill L. Burkhardt, United States Magistrate Judge

         The Court submits this Report and Recommendation to the Honorable Janis L. Sammartino, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.3 of the United States District Court for the Southern District of California.

         On December 24, 2018, plaintiff Angel Peña Ayala (“Plaintiff”), a California prisoner proceeding pro se and in forma pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983. (See ECF Nos. 1, 5.) On July 23, 2019, defendant Correctional Officer J. Salazar (“Defendant”) filed a Motion to Dismiss the Complaint. (ECF No. 7.)

         Defendant moves to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that (1) Plaintiff failed to exhaust administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), and (2) the claim is barred by the favorable termination doctrine. (Id.) For the reasons set forth below, the Court recommends that Defendant's Motion to Dismiss be DENIED.

         I. BACKGROUND

         At the time of the events alleged in the Complaint, Plaintiff was an inmate residing at Richard J. Donovan Correctional Facility (“RJD”). (ECF No. 1 at 1.) Plaintiff alleges in his Complaint that, on April 5, 2017, Defendant subjected him to cruel and unusual punishment. (Id. at 3.) The following allegations are taken from the Complaint:

         On April 5, 2017, at around 12:40 p.m., LCSW (licensed clinical social worker) Salerno deemed it necessary to place Plaintiff on suicide watch. (Id. at 3, 50.) At approximately 1:15 p.m., Plaintiff was placed in a cage in the gym, awaiting escort to suicide watch. (Id. at 3.) Plaintiff was strip searched and allowed to keep only his boxers and socks. (Id.) Plaintiff was also left hand-cuffed while he awaited escort. (Id.) Plaintiff was given a “1083 Property Receipt” and told he could take it with him to suicide watch. (Id.)

         At about 6:45 p.m., Defendant took Plaintiff out of the cage and proceeded to escort him to suicide watch. (Id.) Plaintiff was held by his left arm, hand-cuffed from behind, and carrying the property receipt in his hands. (Id.) Defendant was situated to the left of Plaintiff when he demanded something which Plaintiff could not hear due to other recent injuries. (Id.) Defendant instantly became enraged and shouted at Plaintiff and Plaintiff quickly tried explaining that he had trouble hearing and that he was told he could keep the property receipt. (Id.) However, Defendant was “enraged” and slammed Plaintiff against a window, turned him, kicked his legs to trip him, and slammed him on the ground. (Id.) Defendant then punched Plaintiff's head, face, and body while Plaintiff was face down on the ground and handcuffed. (Id.) Defendant was wearing only his boxers and socks and did not resist in any way. (Id.)

         After the incident, Defendant proceeded to fabricate an “entirely false [Rules Violation Repot (“RVR”), CDCR-115 RVR, Log No. 2562660] to legitimize his assault.” (Id. at 3, 14, 19.) In the report, Defendant states that he merely “forcefully placed [Plaintiff] on the ground.” (Id. at 3, 19.) After the incident, Plaintiff was placed in Administrative Segregation. (Id. at 51.) Plaintiff's Administrative Segregation Notice states that he was placed in Administrative Segregation for the following reason: “On 04/05/2017, at approximately 1315 hours, you were initially placed in ASU-AHC (7) for suicidal ideations. However, while being escorted to the ASU, you committed an act of battery upon a Peace Officer; specifically, you struck [Defendant], with your right foot, on [Defendant's] right shin area, which ultimately resulted in the use of physical force to subdue your attack.” (Id.)

         After a hearing on or about June 30, 2017, Plaintiff was found guilty of violating California Code of Regulations title 15, § 3005(a). (Id. at 3, 14-23.) Specifically, he was found guilty of resisting staff “based on the preponderance of evidence submitted at the hearing.” (Id.) Among other things, Plaintiff lost eighty-five days of good-time credits. (Id. at 19.)

         Plaintiff subsequently filed two CDCR Form 602 appeals relating to the incident. (Id. at 11, 24, 27.) Days after the April 5, 2017 incident, Plaintiff filed his first appeal, which was initially given Log No. CIM-C-17-01015, and later assigned Log No. RJD-X-17-02204. (Id. at 3, 11-12.) This appeal concerned Plaintiff's claim against Defendant for unnecessary and excessive use of force. (Id. at 4.)^[1]

         Plaintiff was interviewed about his first appeal, RJD-X-17-02204, in CIM's crisis unit in mid-April 2017. (Id. at 3.) On April 21, 2017, Plaintiff was notified that his appeal had been forwarded to RJD for further processing. (Id. at 11.) On May 3, 2017, the appeal was sent to staff for a second level response. (Id. at 12.) The accompanying notice sent to Plaintiff states: “If dissatisfied, you have 30 days from the receipt of the [second level] response to forward your appeal for THIRD level review.” (Id.)

         On May 17, 2017, Plaintiff inquired into the status of his two outstanding appeals by way of a CDCR Form 22. (Id. at 7.) Staff responded on June 14, 2017, informing Plaintiff that the response to his appeal designated RJD-X-17-02204 was due June 12, 2017 and was currently pending scanning and mailing to Plaintiff. (Id.) Plaintiff was interviewed by Sergeant Rico about this appeal over the telephone at some point in June 2017. (Id. at 3.)

         On August 28, 2017, Plaintiff submitted another CDCR Form 22 inquiring into the status of his appeal designated RJD-X-17-02204, for which Plaintiff had still not received a response. (Id. at 8.) Staff responded on September 1, 2017, informing Plaintiff that his appeal designated 17-1844 was answered and mailed to him on May 30, 2017. (Id.) On September 20, 2017, Plaintiff submitted yet another CDCR Form 22 inquiring into his appeal, stating that the appeal referenced in response to his last inquiry was incorrect, and that he was inquiring into his appeal designated CIM-C-17-01015 (or RJD-X-17-02204). (Id. at 9.) Staff responded on September 26, 2017, stating that Plaintiff's appeal designated 17-2204 had been answered and mailed to Plaintiff on July 14, 2017, and that a copy could be found in his ERMS file. (Id.) Plaintiff alleges he never received a copy of his second level appeal response in the mail. (Id. at 3.) Plaintiff further alleges that by the time he would have received the Staff response, the time to file his appeal to the third level would have expired. (Id. at 6.)

         On August 12, 2018, Plaintiff submitted another CDCR Form 22 inquiring into his second level appeal again for purposes of litigation, stating that he had never received it and asking for a copy from his ERMS file. (Id. at 6, 10.) Staff responded on August 17, 2018, stating that Plaintiff could request a copy of his appeal from his facility counselor. (Id.)

         In his Complaint, with respect to exhaustion of administrative remedies, Plaintiff alleges that he was “denied the ability to exhaust administrative remedies” for his appeal designated RJD-X-17-02204 regarding the unnecessary and excessive use of force by Defendant. (Id. at 4.) Plaintiff claims he intended to exhaust his appeal, but “[w]hether accidentally or deliberately, CDCR staff obstructed Plaintiff from exhausting this appeal by not returning the appeal on time, and then being ‘lost' in the mailing process.” (Id.)

         Plaintiff seeks damages and relief in the form of the dismissal by CDCR of Defendant's RVR Log No. 2562660 “since it is entirely false and Plaintiff was denied due process.” (Id. at 5.)

         II. LEGAL STANDARD

         A. Motion to Dismiss for Failure to State a Claim

         The Federal Rules of Civil Procedure require that a plaintiff's complaint must provide a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The pleading standard of Rule 8 does not require detailed factual allegations, and the statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, “[t]hreadbare recitals of the elements of a cause of ...