United States District Court, S.D. California
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 ...