Final Report and Recommendation of United States Magistrate Judge

KAREN E. SCOTT, Magistrate Judge.

This Final Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.

PROCEDURAL BACKGROUND

In December 2016, Tyrone B. Estes ("Plaintiff"), a prisoner at Kern Valley State Prison in Delano, California,1 filed a civil rights complaint under 42 U.S.C. § 1983 against G. Dotson ("Defendant"), a correctional officer at California Men's Colony ("CMC") in San Luis Obispo, California, in Defendant's individual and official capacity. (Dkt. 1 or "Complaint.") Plaintiff accuses him of "sexual harassment, staff misconduct, illegal search of person and double search." (Id. at 3.) Specifically, Plaintiff alleges that on October 10, 2016, in front of other inmates, and after another officer pat-searched Plaintiff, Defendant made Plaintiff pull his pants and boxers down and spread his legs, then commented, "Look at his cheeks" while laughing. (Id. at 5-6, 12-13.) While Plaintiff does not state what constitutional right or federal law Defendant violated, the Court liberally construes the Complaint as alleging that these acts violated Plaintiff's Fourth Amendment rights and/or constitutional privacy rights.

On August 10, 2017, Defendant moved for summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies. (Dkt. 16.) Defendant submitted a statement of uncontroverted facts in support of this motion. (Dkt. 16-4 or "SUF.") In lieu of an opposition to Defendant's motion, Plaintiff filed a "Declaration Regarding Exhaustion of Administrative Remedies." (Dkt. 21.) The Court interpreted this filing as a motion for a stay of this case while Plaintiff attempts to exhaust his administrative remedies. (Dkt. 22.) Defendant filed a reply in support of his motion for summary judgment and opposed Plaintiff's request for stay. (Dkt. 23.)

II.

UNDISPUTED FACTS

A. The California State Prison's Appeal Process

California law gives state prisoners the right to appeal administratively any California Department of Corrections and Rehabilitation ("CDCR") decision, action, condition, or policy that had an adverse effect on their welfare. Cal. Code Regs. tit. 15, § 3084.1(a). An inmate must complete three steps to exhaust his administrative remedies. First, he must submit an Inmate/Parolee Appeal form (a "Form 602") to the Appeals Coordinator of the prison where his claims arose. If the inmate does not receive adequate relief at the first level, he must submit a second-level appeal. If the inmate does not receive adequate relief at the second level, he must submit a third-level appeal to the Chief of the Office of Appeals, which exhausts his administrative remedies. Id. §§ 3084.2(a)-(d), 3084.7.

The regulations provide that an inmate generally must submit an appeal within 30 calendar days of the event being appealed, and that an untimely appeal may be cancelled. See Cal. Code Regs., tit. 15, §§ 3084.6(c)(4), 3084.8(b). If an appeal is cancelled due to untimeliness or other procedural problems, that cancellation does not exhaust an inmate's administrative remedies. Id. § 3084.1(b). An inmate may separately appeal a cancellation of an appeal. Id. § 3084.6(e).

B. Plaintiff's Exhaustion Efforts

On November 16, 2016, Plaintiff mailed a Form 602 to CMC's Appeals Office, complaining about the same search he describes in the Complaint. (SUF 2; Declaration of R. Ochoa ["Ochoa Decl."] ¶ 11, Ex. A; Complaint at 10-13.) The Form 602 instructed Plaintiff, "You must send this appeal and any supporting documents to the Appeals Coordinator (AC) within 30 calendar days of the event that led to the filing of this appeal." (Complaint at 10.)

In a response dated November 30, 2016, at the second level of review,2 the CMC Appeals Office cancelled Plaintiff's appeal for untimeliness. (SUF 3; Ochoa Decl. ¶ 11, Ex. A; Complaint at 8). The letter included the following boilerplate language:

(Complaint at 8.)

According to CDCR records, Plaintiff did not submit any further grievances or appeals regarding the October 2016 search, either to the CMC Appeals Office or to the Chief of the Office of Appeals. (SUF 4-6; Ochoa Decl. ¶ 11; Declaration of M. Voong ¶ 11, Ex. A.)

III.

LEGAL STANDARD

"Summary judgment is only appropriate if the evidence, read in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law." Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (citing Fed. R. Civ. P. 56(c)). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

Failure to exhaust administrative remedies is an affirmative defense that a defendant may raise in a summary judgment motion. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). The defendant has the initial burden to prove "that there was an available administrative remedy, and that the plaintiff did not exhaust that available remedy" prior to filing suit. Id. at 1172. If the defendant carries that burden, then "the burden shifts to the prisoner to 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. The ultimate burden of proof remains with the defendant, however. Id.

IV.

PLRA EXHAUSTION REQUIREMENT

The Prison Litigation Reform Act ("PLRA") requires prisoners to exhaust administrative remedies before filing suit in federal court. 42 U.S.C. § 1997e(a) 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." Exhaustion of administrative remedies serves two main purposes. First, exhaustion protects administrative agency authority, giving agencies an opportunity to correct their own mistakes. Second, exhaustion promotes efficiency, because claims generally can be resolved more economically and quickly before an agency than a federal court. Woodford v. Ngo, 548 U.S. 81, 89 (2006). "Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims." Id. at 90.

The PLRA includes an exception to mandatory exhaustion, because the exhaustion requirement hinges on the "availab[ility]" of administrative remedies." An inmate must exhaust available remedies, but not unavailable ones. Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1858 (2016). The United States Supreme Court recognizes "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Id. at 1859. First, an administrative procedure is unavailable when it operates "as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. Second, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. at 1859-60. Third, an administrative procedure is unavailable when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.

V.

DISCUSSION

A. PLRA Exhaustion

Plaintiff alleges in the Complaint that he has exhausted his administrative remedies, but he attaches the same grievance form and cancellation letter that Defendant appended to its motion. (See Complaint at 2, 8-13.) Based on the record before it, therefore, the Court concludes that Defendant has carried his burden of showing that Plaintiff did not exhaust his available administrative remedies, and that Plaintiff has not come forward with evidence showing that these remedies were effectively unavailable. Plaintiff's second-level appeal was cancelled as untimely, and Plaintiff made no effort to appeal that cancellation. "Proper exhaustion demands compliance with an agency's deadlines." Woodford, 548 U.S. at 90; see id. at 83-84 ("This case presents the question whether a prisoner can satisfy the [PLRA's] exhaustion requirement . . . by filing an untimely or otherwise procedurally defective administrative grievance or appeal. We hold that proper exhaustion of administrative remedies is necessary.").

Plaintiff has not provided the Court with any basis to conclude that administrative remedies were effectively unavailable to him. First, there is no suggesting that the administrative procedure operated as "dead end." Rather, the cancellation letter informed Plaintiff that he could appeal the cancellation.

Second, there is no indication that the administrative scheme was so opaque that it became incapable of use. Plaintiff states that he is "not a licensed attorney," has "little competence concerning legal matters," was not aware of how to exhaust his administrative remedies, and has the education level of a fourth grader. (Dkt. 21 at 1-2.) Plaintiff's lack of legal training, education level, and purported ignorance of the grievance process have no bearing on whether the administrative scheme was "so opaque" that an "ordinary prisoner" would be unable to "discern or navigate it." Ross, 136 S. Ct. at 1859. Furthermore, Plaintiff's briefing in this case demonstrates that he should have been capable of understanding the November 2016 notice from the CMC Appeals Office informing him that he could appeal the cancellation. See Bodie v. Tipten, No. 10-2788, 2011 WL 5331684, at *4 (D. Ariz. Nov. 7, 2011), aff'd, 498 F. App'x 723 (9th Cir. 2012) ("Plaintiff also suggests that he did not fully understand the grievance system and that . . . his education did not extend beyond elementary school. . . . [T]he Court finds that Plaintiff has sufficiently articulated his claims and capably presented arguments in response to Defendants' motions. Thus, there is no evidence that remedies were effectively unavailable due to Plaintiff's inability to navigate the grievance process.").

Third, the Court cannot conclude that prison administrators thwarted Plaintiff from taking advantage of the grievance process through machination, misrepresentation, or intimidation. Plaintiff has not alleged that CDCR officials engaged in misrepresentation or intimidation. Giving Plaintiff every benefit of the doubt, Plaintiff could argue that the cancellation was "machination," in that he alleged what he describes as "sexual harassment" by a staff member and therefore should not have been subject to the 30-day time constraint.3 See Cal. Code Regs., tit. 15, § 3084.8(b) (carving out allegations of "sexual violence" and "staff sexual misconduct" from 30-day time restraint); see also Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (noting that "improper screening of an inmate's administrative grievances renders administrative remedies `effectively unavailable' such that exhaustion is not required under the PLRA"). Given the facts at hand, however, such a single improper screening would not render Plaintiff's administrative remedies effectively unavailable. Indeed, if a single improper screening always rendered these remedies "effectively unavailable," then the requirement that prisoners appeal cancellations would be pointless. Other district courts have also concluded that, in order to show "effective unavailability," inmates generally must appeal an allegedly improper cancellation. See, e.g., Morris v. Bradford, No. 10-2069, 2015 WL 351658, at *12 (E.D. Cal. Jan. 26, 2015) (holding that, by failing to appeal cancellation decision, plaintiff failed to exhaust claims despite availability of administrative remedies); Barrett v. Cate, No. 09-01741, 2011 WL 6753993 at *10 (E.D. Cal. Dec. 23, 2011) (holding that, despite improper screening of inmate appeal, plaintiff should not be excused from exhaustion requirement because he was afforded an opportunity to contest screening decision but chose not to); Newman v. McLean, 2009 WL 688859, at *6 (N.D. Cal. 2009) ("Plaintiff did not pursue all the remedies that were available since he could have appealed the alleged improper screening out of the inmate appeal as being duplicative but failed to do so."); see also Sapp, 623 F.3d at 826 (noting that if plaintiff thought officials improperly screened-out his appeal, he could have contested decision "as boilerplate text at the bottom of the screening form advised him he could do"); cf. Padilla v. Hasley, No. 15-02693, 2017 WL 1927874, at *1 (C.D. Cal. Mar. 9, 2017) ("The Court agrees that, in other situations, one improper rejection might not render administrative remedies `effectively unavailable.'").

Here, Plaintiff could have appealed the cancellation but did not. Instead, he filed this suit before exhausting his administrative remedies. His suit is therefore subject to dismissal.

B. Motion for Stay and Dismissal

The Court recommends denying Plaintiff's motion for a stay. "Requiring dismissal without prejudice when there is no presuit exhaustion provides a strong incentive that will further these Congressional objectives; permitting exhaustion pendente lite will inevitably undermine attainment of them." McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (affirming multiple district courts' dismissing without prejudice for failure to exhaust, rather than entering stay to provide opportunity for exhaustion).

In some circumstances where prisoner grievances were canceled on timeliness grounds, district courts have dismissed suits with prejudice for failure to exhaust. See, e.g., Anderson v. McDonald, No. 11-2744, 2013 WL 211123, at *8 (E.D. Cal. Jan. 18, 2013) ("[T]he undersigned recommends that the complaint be dismissed with prejudice. . . . "[F]iling an untimely or otherwise procedurally defective administrative grievance or appeal" does not satisfy the PLRA's exhaustion requirement. [Woodford, 548 U.S.] at 84. . . . Years have passed since the acts alleged in the complaint."). The Court cannot conclude on the record before it that it would be impossible for Plaintiff to exhaust his administrative remedies. The Court therefore recommends dismissing this suit without prejudice.

VI.

RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the District Judge issue an Order: (1) accepting this Final Report and Recommendation; (2) denying Plaintiff's motion for a stay; (3) granting Defendant's Motion for Summary Judgment; and (4) dismissing the Complaint without prejudice for failure to exhaust administrative remedies.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but are subject to the right of any party to timely file Objections as provided in the Federal Rules of Civil Procedure and the instructions attached to this Report. This Report and any Objections will be reviewed by the District Judge whose initials appear in the case docket number.