Opinion
2:22-cv-01658-DGE-BAT
01-25-2023
DANIEL GONZALES, Plaintiff, v. EDWARD TAYLOR, et al., Defendant.
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE
Plaintiff, Daniel Gonzales, a detainee of the King County Jail, seeks 42 U.S.C § 1983 relief for violations under the Eighth and Fourteenth Amendments he alleges were committed on November 13, 2019, by Defendants Edward Taylor, Damian Spicer, and Michael Shork who are King County Jails Officers. Dkt.1. Plaintiff alleges Defendants transported him from Harborview Medical Center in a manner that caused him pain and exacerbated injuries for which he had just received medical treatment. The complaint dated November 9, 2022, also avers:
Because I was in custody, I filed a grievance against the three officers. It was rejected and stamped return to inmate and returned to me with a photocopied page from the jail inmate handbook with a portion highlighted. It stated that grievances must be submitted within 14 calendar days of the incident being grieved. Because I was passed 14 days I am not allowed to grievance.Id. at 8.
The Court screens complaints filed by detainees such as Plaintiff under 28 U.S.C. § 1915A(a), and must “dismiss the complaint, or any portion of the complaint, if it is: (1) frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” § 1915A(b); accord § 1915(e)(2); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Because the Complaint avers Plaintiff was informed by the King County Jail the grievance, he submitted regarding this matter was untimely, the Court recommends the complaint be dismissed with prejudice at this juncture under 42 U.S.C. § 1997e(a). Leave to amend should be denied because no amendment will alter the fact that Plaintiff has not properly exhausted his administrative remedies and is therefore barred from bringing this §1983 action. Additionally, the complaint is subject to dismissal because although Plaintiff was advised to either pay the filing fee or submit an application to proceed in forma pauperis by December 21, 2022, he has failed to do so.
DISCUSSION
Under the Prison Litigation Reform Act (PLRA), a prisoner cannot bring an action regarding prison conditions unless the prisoner has properly exhausted all administrative remedies. 42 U.S.C. § 1997e(a). The PLRA is designed to reduce unnecessary federal-court interference in the administration of prisons. See Woodford v. Ngo, 548 U.S. 81, 93 (2006). Requiring exhaustion gives prison officials a “fair opportunity to correct their own errors” and creates an administrative record for grievances that eventually become the subject of federal court complaints. Id. at 94; See also Porter v. Nussle, 534 U.S. 516, 524-25 (2002).
Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter, 534 U.S. at 532. Prisoners must adhere to the deadlines and other “critical procedural rules” of the prison's grievance process, Woodford, 548 U.S. at 90; accordingly untimely or otherwise procedurally defective grievance is insufficient. Id at 83-84. Thus, to meet the exhaustion requirement, an inmate must show “proper exhaustion,” which “demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at 9091.
The failure to exhaust as required by § 1997e(a) is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Consequently, unless plaintiff pleads facts that show he failed to exhaust his administrative remedies-meaning his Complaint is subject to dismissal at the pleading stage-then defendants cannot prevail on an exhaustion defense until they introduce evidence to prove it, e.g., at summary judgment. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). If the Court concludes plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice of the portions of the complaint barred by § 1997e(e). Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
Here, the complaint avers the grievance Plaintiff submitted was rejected as untimely. The complaint avers Plaintiff was in "custody" when the Defendant Jail Officers transported him in a Jail vehicle from Harborview. Dkt.1 at 7. While Plaintiff was physically outside of the Jail, he was nonetheless in the custody of the King County Jail. Plaintiff thus alleges Defendants violated his Eighth Amendment rights. See Helling v. McKinney, 509 U.S. 25, 32, (1993) (Eighth Amendment violated when prisoner is subjected to “unnecessary and wanton infliction of pain contrary to contemporary standards of decency.”).
The Court may address the merits of Plaintiff's constitutional claim only if Plaintiff properly exhausted his administrative remedies. The complaint avers Plaintiff has not exhausted his remedies. Rather the complaint avers that Plaintiff was provided with the King County Jail's inmate handbook which sets forth how persons in jail custody must file a grievance within 14 calendar days of the incident being grieved and that Plaintiff's grievance was rejected for failing to comply with this requirement. Additionally, in order to properly exhaust the King County Jail's administrative remedies, a person in custody must appeal the initial determination to deny the grievance, if the person believes there was a possible error by the original reviewer. See e.g., Cross v. King County Executive, et al., 2:10-cv-00081-RSL, at Dkt. 47. Here there is no indication Plaintiff appealed, and thus fully exhausted, the initial rejection of his grievance.
In sum, Plaintiff alleges Defendants violated his rights more than three years ago. The Court cannot address Plaintiff's claims because the complaint on its face avers Plaintiff failed to properly exhaust his administrative remedies. The complaint avers Plaintiff submitted a grievance that was rejected as being untimely because it was submitted more than 14 days after an incident which allegedly occurred on November 13, 2023. There is no indication the grievance was timely and that the Jail thus erroneously rejected it. Moreover, there is no indication Plaintiff appealed the determination the grievance was untimely.
The Court therefore recommends that the complaint be dismissed with prejudice at this juncture and that leave to amend be denied. See e.g., Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (Leave to amend may be denied if the proposed amendment is futile or would be subject to dismissal); Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (“Futility alone can justify the denial of a motion to amend.”). The complaint is also subject to dismissal because Plaintiff filed the complaint without payment of the filing fee or applying to proceed in forma pauperis. Although Plaintiff was directed to cure this deficiency, he has not responded to the Court.
OBJECTIONS AND APPEAL
This Report and Recommendation is not an appealable order. Therefore, Plaintiff should not file a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit until the assigned District Judge enters a judgment in the case.
Objections, however, may be filed no later than January 10, 2023. The Clerk shall note the matter for January 13, 2023, as ready for the District Judge's consideration. The failure to timely object may affect the right to appeal.