KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding without counsel. Plaintiff filed his civil rights complaint, pursuant to 42 U.S.C. § 1983, on September 25, 2014. (ECF No. 1.) Plaintiff alleges that defendants Hood and Rolland failed to protect plaintiff on August 25, 2013, in violation of the Eighth Amendment, by knowingly ordering plaintiff and his known enemy into plaintiff's cell, resulting in plaintiff being assaulted while in restraints.
As set forth below, the undersigned recommends that defendants' motion to dismiss be granted.
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question,
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory.
Proper exhaustion of available remedies is mandatory.
Failure to exhaust under the PLRA is "an affirmative defense the defendant must plead and prove."
A motion asserting an affirmative defense such as failure to exhaust may be brought under Rule 12(b)(6) or Rule 56 depending on whether the factual predicate for the motion is based on the text of the pleading or instead depends upon evidence submitted with the motion.
The California Department of Corrections and Rehabilitation ("CDCR") provides inmates the right to appeal administratively "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Following amendments that took effect January 28, 2011, California prisoners are required to proceed through three levels of appeal to exhaust the administrative appeal process: (1) formal written appeal on a CDC 602 inmate appeal form, (2) second level appeal to the institution head or designee, and (3) third level appeal to the Director of the CDCR.
To initiate an appeal, the inmate must submit a CDCR Form 602 describing the issue to be appealed and the relief requested to the appeals coordinator's office at the institution.
However, appeals concerning staff complaints are processed differently. California Code of Regulations Title 15, § 3084.5(b) (4) states:
An appeal may be cancelled if it is untimely. Cal. Code Regs. tit. 15, § 3084.6(c)(4). However, if the issue is ongoing, the inmate may appeal any time during the duration of the event.
An inmate can appeal a cancellation decision separately by appealing the application of § 3084.6(c) to his appeal; if he prevails on that separate appeal, the cancelled appeal later can be considered at the discretion of the appeals coordinator or the third level appeals chief.
Defendants argue that the court should dismiss this action because this is one of the rare cases in which it is clear from the face of the complaint and its exhibits that plaintiff failed to exhaust his administrative remedies prior to filing the instant action. Defendants point out that despite stating that he exhausted his administrative remedies, plaintiff attached the appeals and responses to his complaint, and the appeal was cancelled at the third level of review because the appeal was not timely-filed. (ECF No. 25-1 at 1.) Thus, defendants argue that it is evident from the exhibits appended to plaintiff's complaint that he did not exhaust his administrative remedies as to the claims in this lawsuit.
On March 23, 2015, plaintiff filed an opposition to the motion. Plaintiff first argues that defendants are required to file their motion as a motion for summary judgment, citing
In reply, defendants argue that because plaintiff's arguments are based on misapplication of
On April 13, 2015, plaintiff filed a sur-reply. On April 20, 2015, defendants filed a motion to strike the sur-reply as unauthorized.
The Local Rules provide for a motion, an opposition, and a reply; the Local Rules and the Federal Rules do not provide the right to file a sur-reply.
Defendants did not submit new evidence in their reply. The court did not request or approve the filing of a sur-reply. Thus, defendants' motion to strike plaintiff's unauthorized sur-reply is granted.
Plaintiff signed his appeal on December 2, 2013, which was received by HDSP appeals on December 13, 2013, and identified the subject of his appeal as a "violation of due process rights, endangering inmate life." (ECF No. 1 at 13.) Plaintiff added that he was "in fear for his life." (Id.) In the continuation section, plaintiff set forth his allegations against defendants Rolland and Hood concerning the assault on August 25, 2013. (ECF No. 1 at 15.) Plaintiff sought transfer to another institution or SHU, permanent single cell, and requested that further institutional civil violations stop. (ECF No. 1 at 13.) Plaintiff signed a Rights and Responsibility Statement on December 2, 2013, alleging misconduct by defendants Rolland and Hood. (ECF No. 1 at 11.) Plaintiff provided a letter dated December 7, 2013, in which he informed Appeals Coordinator Cornelison that
(ECF No. 1 at 22.)
On January 29, 2014, the first level appeal was partially granted. (ECF No. 1 at 13, 17.) Plaintiff was informed that all issues unrelated to the allegation of staff misconduct must be appealed separately and would not be addressed in the response. (ECF No. 1 at 17.) The reviewing official noted that staff violated CDCR policy with respect to one or more of the issues appealed. (ECF No. 1 at 18.) Plaintiff was then informed as follows:
(ECF No. 1 at 18.)
On March 31, 2014, plaintiff sought second level review, stating he believed he should be given a single cell because staff was retaliating against him because of the appeal. Plaintiff claimed Sgt. Hanks stated that if plaintiff did not rescind the staff complaint "he would do what he had to do," and on March 10, 2014, "R&R staff" took plaintiff's TV and legal work in reprisal. (ECF No. 1 at 14.) In addition to a single cell, plaintiff sought return of his TV, legal documents and pictures, and requested that reprisals stop. (ECF No. 1 at 15.)
On April 28, 2014, plaintiff's second level appeal was partially granted. (ECF No. 1 at 20.) The second level reviewer declined to address plaintiff's new allegations concerning staff retaliation allegedly warranting single cell status, and the taking of his TV and legal work. (ECF No. 1 at 19.) Plaintiff's allegation of staff misconduct was reviewed by the hiring authority and was referred for an appeal inquiry, and because the confidential appeal inquiry was completed, the second level appeal was partially granted. (ECF No. 1 at 20.) Plaintiff was provided the same information under the heading "All Staff Personnel Matters are Confidential in Nature," that was provided in the first level appeal response, including the reminder that plaintiff's administrative remedies would be considered exhausted once a decision was rendered at the third level of review. (ECF No. 1 at 20.)
On May 20, 2014, plaintiff sought third level review, claiming that his
(ECF No. 1 at 14.)
On August 12, 2014, plaintiff's third level appeal was cancelled. (ECF No. 1 at 8, 14.) The reviewer noted that pursuant to § 3084.8(b), plaintiff was required to appeal within 30 calendar days from the date of the incident, August 25, 2013. (ECF No. 1 at 8.) The reviewer found that because plaintiff did not file his appeal until December 13, 2013, plaintiff exceeded time limits, and the appeal was cancelled pursuant to § 3084.6. (ECF No. 1 at 8.) Although the appeal could not be resubmitted, plaintiff was advised that a separate appeal could be filed on the cancellation decision. (
Plaintiff did not appeal the cancellation of this third level appeal.
The exhibits appended to plaintiff's complaint demonstrate that plaintiff wrote the warden to pursue an informal appeal concerning the instant claims rather than initially file a 602 appeal as required by prison regulations. Although plaintiff adamantly insists that this was the proper procedure, CDCR prison regulations effective in 2011 refute such a position. As set forth above, to initiate an appeal, plaintiff was required to submit a CDCR Form 602 to the appeals coordinator's office at the institution. Cal. Code Regs. tit. 15, § 3084.2(a)-(c). In addition, plaintiff was reminded of this required procedure by the warden in the October 17, 2013 memorandum. (ECF No. 1 at 12.) Thus, plaintiff's informal appeal submitted to the warden was not properly filed.
In addition, despite the 2011 prison regulations and the warden's memorandum, plaintiff waited until December 2, 2013, to complete the 602 appeal form and the Rights and Responsibility Statement. (ECF No. 1 at 11, 12.) Indeed, in his accompanying memo, plaintiff appears to concede the untimely filing: "This staff complaint originally started timely 8/26/13 with Warden Foulk H.D.S.P. at the informal level. . . ." (ECF No. 1 at 22.) Plaintiff was assaulted on August 25, 2013, but did not file an appeal concerning the assault until December 13, 2013, over three and a half months later. Plaintiff was required to submit an appeal on the 602 form within thirty days from the date of the incident. Cal. Code Regs. tit. 15, § 3084.8(b)(1). Thus, plaintiff's appeal was not timely filed.
Because plaintiff's appeal was not timely filed, prison officials' subsequent cancellation of the third level appeal was proper. Section 3084.1(b) provides that "[a]ll lower level reviews are subject to modification at the third level of review," and "[e]rroneous acceptance of an appeal at a lower level does not preclude the next level of review from taking appropriate action, including rejection or cancellation of the appeal." Cal. Code Regs. tit. 15, § 3084.6(5). In addition, "a cancellation or rejection decision does not exhaust administrative remedies." Cal. Code Regs. tit. 15, § 3084.1(b).
In the memo accompanying his appeal, plaintiff states that after writing to the warden within the time limits, plaintiff was within his rights to appeal pursuant to § 3084.8(b)(3), which plaintiff claims is why the appeals coordinators accepted the appeal at the first and second levels of review. (ECF No. 1 at 30.) However, plaintiff's reliance on § 3084.8(b)(3), which provides that an inmate could appeal within 30 days after "receiving an unsatisfactory departmental response to an appeal filed," is unavailing because his informal filing with the warden was not a 602 appeal filed with the appeals coordinator. But even if it were so construed, the warden responded on October 17, 2013, and plaintiff did not file his 602 appeal 30 days thereafter. Rather, plaintiff filed his 602 appeal 57 days later on December 13, 2013. Thus, plaintiff's argument is unavailing.
Accordingly, plaintiff's statement in his complaint that he exhausted administrative remedies is contradicted by the appended exhibits demonstrating that his appeal was not properly or timely filed pursuant to current CDCR regulations, and the cancellation of his appeal at the third level of review does not constitute proper exhaustion of plaintiff's administrative remedies.
Plaintiff argues that because his appeal was submitted under "extraordinary circumstances," he could file his appeal at any time. In an attachment to his complaint, plaintiff stated that during the exhaustion process, "the appeals coordinators knew at that time this incident with staff at [HDSP] was ongoing," and that his witnesses, along with other African American inmates, would testify that HDSP is "known for its racism." (ECF No. 1 at 30.)
Defendants contend that plaintiff's complaint challenges the single incident on August 25, 2013, and therefore plaintiff was required to file his appeal within thirty days.
"If the issue is ongoing, which may include but is not limited to, continuing lockdowns, retention in segregated housing, or an ongoing program closure, the inmate or parolee may appeal any time during the duration of the event." Cal. Code Regs. tit. 15 § 3084.6(c)(4).
In his appeal, plaintiff claimed that he was in fear for his life, and alleged that on August 25, 2013, defendants Rolland and Hood had set plaintiff up by moving a documented enemy into plaintiff's cell, resulting in plaintiff's assault and injuries. However, despite being filed months after the assault, plaintiff included no allegations concerning subsequent threats or ongoing misconduct by defendants Rolland and Hood or any other ongoing issue. Moreover, in his August 31, 2013 request for interview, plaintiff confirmed he no longer felt safe due to the recent improper cell move that caused him to be assaulted. (ECF No. 1 at 21.) Plaintiff did not state he was afraid because of any specific ongoing issue, or subsequent misconduct by defendants. (
Similarly, in the instant complaint, plaintiff does not allege an ongoing violation of his constitutional rights, only raising the August 25, 2013 incident, and challenging the actions of defendants Rolland and Hood on that date.
Moreover, although plaintiff was housed in administrative segregation and retained there for some period of time, the issue in plaintiff's appeal was not plaintiff's retention in administrative segregation, but rather the events leading up to the August 25, 2013 assault.
For all of these reasons, plaintiff's appeal cannot be construed as alleging ongoing acts of misconduct by defendants Rolland and Hood or challenging an "ongoing issue" sufficient to warrant application of the provisions of § 3084.6(c)(4). Thus, plaintiff was required to appeal the August 25, 2013 incident within thirty days.
Plaintiff contends that the acceptance of his appeal at the first and second levels of review constitutes exhaustion. However, section 3084.6(5) provides that "[e]rroneous acceptance of an appeal at a lower level does not preclude the next level of review from taking appropriate action, including rejection or cancellation of the appeal." Cal. Code Regs. tit. 15, § 3084.6(5). Thus, plaintiff's objection that his appeal was accepted for review at the first and second levels of review is unavailing because prison officials at the third level of review were allowed to cancel the appeal. Indeed, plaintiff argues that prison officials have discretion to accept untimely appeals; such discretion includes the authority to refuse to accept untimely appeals. Had plaintiff's appeal been accepted at the third level review and denied, the initial untimely appeal would not have precluded review by this court.
Further, plaintiff contends that because he presented his appeal to the third level review and obtained the "appeal head's cancellation," he completed the process and exhausted his claims. (ECF No. 26 at 10.) Plaintiff contends that even though he did not receive the relief he sought, his appeal is exhausted, citing
The administrative process is exhausted only after the inmate complies with all relevant prison grievance procedures and receives a decision from the third level.
Because plaintiff is required to receive a third level decision, not a cancellation, the cancellation of plaintiff's third level appeal cannot serve to exhaust plaintiff's claims. Plaintiff's reliance on
Plaintiff also appears to argue that because his appeal was granted in part, he did not need to appeal to the third level of review, and did so only as a formality. (ECF No. 26 at 13.)
The instant case is distinguishable from
Thus, plaintiff's failure to obtain a third level decision, rather than a cancellation, renders his claim unexhausted.
In his complaint, plaintiff claims that his appeal was an emergency appeal under § 3084.9. Defendants contend that plaintiff did not submit his appeal as an emergency appeal, and cannot claim after the fact that the earlier situation was an emergency. In addition, defendants argue that plaintiff's delay in filing a 602 appeal, while filing other, informal documents, contradicts that it was an emergency. Moreover, defendants note that plaintiff's appeal fails to include specific allegations to suggest he was in immediate risk of harm, but rather makes vague allegations of reprisals and complains of the loss of his TV. (ECF No. 25-1 at 7.)
Emergency appeals allow an inmate to submit an appeal for faster processing when "regular appeal time limits would subject the inmate or parolee to a substantial risk of personal injury or cause other serious and irreparable harm." Cal. Code Regs. tit. 15, § 3084.9.
Although plaintiff stated he was "in fear for his life," the only specific factual allegations in plaintiff's initial appeal pertain to the events leading up to the August 25, 2013 assault. Moreover, in his request for interview dated August 31, 2013, plaintiff stated that "due to the recent improper cell move that caused him to be assaulted, plaintiff no longer felt safe in this prison, or prison's ad-seg especially." (ECF No. 1 at 21.) Plaintiff's vague allegations of subsequent reprisals referenced the taking of his TV and legal documents, but plaintiff included no specific facts suggesting the appeal should be processed on an emergency basis. Thus, plaintiff's appeal is not properly construed as an emergency appeal under § 3084.9.
Plaintiff does not dispute that there is an "existing and generally available" administrative remedy process for state prisoners. Defendants are not entitled to dismissal if the court determines that the administrative remedy process was effectively unavailable to plaintiff.
First, the court must first determine whether plaintiff's appeal would have sufficed to exhaust his Eighth Amendment claim against defendants Rolland and Hood. An appeal "suffices to exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks redress," and "the prisoner need only provide the level of detail required by the prison's regulations."
Next, the inquiry turns to whether staff misconduct or other events rendered the administrative remedy process effectively unavailable.
In his verified opposition to the motion to dismiss, plaintiff did not argue that remedies were unavailable to him or that prison staff interfered with his ability to timely file an appeal. (ECF No. 26, passim.) Rather, plaintiff defended his decision to file his informal appeal with the warden, and argued that, for various reasons, his 602 appeal was properly and timely filed. Indeed, plaintiff declares that "he is well versed on the proper procedure of filing a staff complaint against staff misconduct and [has] followed proper procedure to the letter." (ECF No. 26 at 14.)
In an unverified attachment to his complaint, plaintiff states that he:
(ECF No. 1 at 30-31.) This document is marked, "Cover Letter." (ECF No. 1 at 31.)
While not entirely clear, it appears that plaintiff contends prison staff attempted to stop plaintiff from exhausting his administrative remedies by cancelling his third level appeal.
However, as noted above, in order to timely exhaust his administrative remedies, plaintiff was required to file his 602 appeal within thirty days of the August 25, 2013 incident. This additional, unverified filing confirms that plaintiff intentionally first wrote the warden, believing that such action was timely and appropriate. Thus, even if plaintiff waited until he transferred to a different prison to file his initial 602 appeal, by then, his appeal was untimely. Whatever alleged interference occurred after the thirty day period expired is of no consequence because the deadline had already run.
Here, plaintiff consistently insists that he followed proper procedure by first writing to the warden, and his own statement accompanying the 602 appeal confirms that this was his belief. (ECF No. 1 at 22.) His insistence is confirmed by his own statement made first on December 7, 2013. A fair reading of his opposition to the motion to dismiss makes clear that he intentionally filed with the warden first and that he mistakenly believed that his appeal was timely-filed. By the time plaintiff received the warden's response informing plaintiff that he must file a 602 appeal, more than 30 days had elapsed from the August 25, 2013 incident, preventing plaintiff from exhausting his administrative remedies in a timely manner. But plaintiff delayed even further, not submitting his appeal until December 2, 2013.
In this case, plaintiff filed an inmate appeal but it was properly cancelled at the third level of review because it was untimely. To the extent plaintiff contends that unidentified prison staff "would retaliate" or "tried to prevent or stop this complaint," or that defendants allegedly kept plaintiff from filing an appeal after the warden responded, such allegations are relevant to the issue of why the appeal was untimely.
(ECF No. 1 at 8.) Plaintiff argues that he appealed to the third level of review, and that the cancellation demonstrates that he exhausted his administrative remedies because he could go no further. But plaintiff could have appealed the cancellation of his third level appeal, and could have explained his position why prison officials at the first and second levels accepted the appeals, as well as explain his position that the appeal was late because he felt prison staff would retaliate or because prison staff somehow interfered. Plaintiff did not. Plaintiff may not benefit from a purported unavailability of administrative remedies where he disregarded the procedural rules of which he was on notice and which could have afforded him relief from the cancellation of his appeal.
Plaintiff was required to properly exhaust by complying with the rules and regulations, and there was an administrative remedy process available to him of which he was on notice. Plaintiff failed to properly and timely exhaust that available process.
Accordingly, IT IS HEREBY ORDERED that defendants' motion to strike plaintiff's sur-reply (ECF No. 30) is granted; and
IT IS RECOMMENDED that defendants' motion to dismiss (ECF No. 25) be granted, and this action be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
Cal. Code Regs. tit. 15, § 3084.9(a)(1). As set forth above, however, plaintiff did not identify his 602 appeal as an emergency, and included no facts suggesting the appeal should be processed as an emergency appeal.
