Summary
rejecting prisoner's contention that his attorney's grievance to the sheriff exhausted his administrative remedies because even if there was another means of remedy available, prisoner is not excused from the prison's established complaint procedure
Summary of this case from Perryman v. San Francisco Sheriff's Dep'tOpinion
CV 01-10905 RSWL(CTx)
June 11, 2003
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITHOUT PREJUDICE
I. BACKGROUND
Plaintiff, a prisoner, filed a Complaint on December 18, 2001 alleging Civil Rights Deprivations. The suit is against Leroy Baca, Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina, Zev Yaroslavsky, Los Angeles Deputy Sheriff's Employees "Unknown" Villalpando #220175, "Unknown" Lee, and Ten Unknown Named Defendants.
The incident complained of occurred on February 27, 2001 Plaintiff claims that he was beaten, hit, and kicked by defendants while he was in custody*at the Los Angeles Men's Central Jail. On October 1, 2001, Plaintiff was turned over to the custody of the California Department of Corrections.
Plaintiff filed a First Amended Complaint on March 18, 2003 adding Choung Lee and Francisco Enriquez as defendants. It alleges violations of the Fourth, Eighth, and Fourteenth Amendments of the U.S. Constitution, as well as conspiracy to do the same.
Defendants Sheriff Leroy Baca and Deputy George Villalpando brought a Motion to Dismiss. The Court granted that Motion on April 28, 2003, and dismissed without prejudice the First Amended Complaint in its entirety for failure to exhaust administrative remedies. Plaintiff was given 20 days to amend.
On the day of the ruling, April 28, 2003, Plaintiff's attorney mailed a letter, along with an inmate complaint form, to Sheriff Leroy Baca.
Plaintiffs filed a Second Amended Complaint, which is nearly identical to the First Amended Complaint, the day after the hearing, on April 29, 2003. Defendants Leroy Baca, George Villalpando, Choong Lee and Francisco Enriquez now move to dismiss the Second Amended Complaint on the same grounds.
II. DISCUSSION
As a preliminary matter, Plaintiff states that there was no compliance with Local Rule 7-3. Defendants left a telephone message for Plaintiff's counsel and hand delivered a letter to him addressing the substantive issues in the instant Motion. The Court finds that Defendants substantially complied with Local Rule 7-3 and will consider the Motion.1. Timeliness
Plaintiff first urges the Court to strike the instant Motion as untimely because the Court had set a last day for motions as April 18, 2003, The instant Motion was filed on May 13, 2003.
Plaintiff did not file the operative Second Amended Complaint until after the motion cut-off date, on April 29, 2003. The instant Motion was timely filed pursuant to Rule 12, and is properly considered. Fed.R.Civ.P. 12.
2. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act ("PLRA") requires prisoner litigants to exhaust all administrative remedies before seeking relief under any federal statute, including section 1983. 42 U.S.C. § 1997e(a). The statute states, in pertinent part, "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." Id. This requirement has been held to apply to conspiracy claims, as much as to any other claim. Lewis v. Washington, 300 F.3d 829, 835 (7th Cir. 2002).
The exhaustion requirement has been strictly construed and stringently applied. Porter v. Nussle, 534 U.S. 516 (2002)("the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong'); Booth v. Churner, 532 U.S. 731, 740-41 (2001) (PLRA requires exhaustion of administrative remedies regardless of type of relief sought).
Defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Such a Motion is properly considered as an unenumerated 12(b) motion. Id. ("we have held that the failure to exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement, which is subject to an unenumertaed Rule 12(b) motion rather than a motion for summary judgment").
Plaintiff Harris was confined in Los Angeles County Men's Central Jail ("MCJ") when the alleged incident occurred. He was in the custody of the California Department of Corrections when he filed suit. The PLRA therefore applies to Plaintiff and to this action.
Defendants submitted a declaration by John Devries, the custodian of records in the Legal Unit of MCJ, detailing the administrative procedures at MCJ. The administrative remedy procedures that existed for inmates at the time Plaintiff was in custody at MCJ were initiated by the inmate submitting a completed Inmate Complaint Form ("Form"). All inmates had the right to submit a Form regarding any aspect of their confinement, including personnel conduct, medical care, and conditions of confinement. The Forms were available at various locations within the facility, and an adequate supply was maintained and available for any inmate who requested them.
The Forms could be deposited into one of the many complaint boxes throughout the facility or given directly to any sworn personnel. All complaints were picked up by the legal staff and logged as to the inmate's name, booking number, date of complaint, date received and nature of the complaint. Each was given a reference number and assigned a supervisor who would take steps to determine if the complaint was founded or unfounded. The complaints were generally resolved within 10 days of receipt unless there were justifiable reasons for the delay. A review and appeals process would follow an unfavorable decision.
All complaints and related documents were filed with the Legal Unit, to be maintained for five years, and information regarding the Forms was entered into the Los Angeles Sheriff Department computer system.
Devries conducted a search of the computer database, which revealed that Plaintiff did not submit a Form pertaining to the incident at issue here.
Plaintiff does not dispute that he did not submit the Form described above. Instead, Plaintiff states that his attorney mailed a letter, along with a Form, directly to Sheriff Leroy Baca. A copy of the same is attached to Plaintiff's Opposition. The Second Amended Complaint was filed the day after the letter was mailed.
In the previous Motion to Dismiss, Plaintiff alleged that his attorney had mailed a grievance on his behalf sometime between July 27, 2001 and December 18, 2001, when this action was originally filed. Counsel stated that he submitted a grievance to Defendant Baca and never received a response. This Court specifically found that even if Plaintiff's attorney did send a grievance to Sheriff Baca on Plaintiff's behalf, that did not absolve Plaintiff of the requirement to exhaust all of his available administrative remedies, including the prison's established complaint procedure.
Counsel's representation's regarding this letter were extremely vague. He did not provide a copy of the letter or any specific information as to its contents or the date that it was sent.
In the instant Motion, Plaintiff again argues that the PLRA does not require Plaintiff himself to exhaust his administrative remedies, but that Plaintiff's counsel may do so on his behalf. The only case that Plaintiff cites is a case that holds the opposite of his contention,Lavista v. Beeler, 195 F.3d 254, 257 (6th Cir. 1999) ("§ 1997e(a) requires all prisoners to exhaust all available administrative remedies by bringing the problem to the attention of the proper prison authority through the prison's grievance procedures before proceeding with a federal cause of action"). Plaintiff then attempts to distinguish that case by noting that the plaintiff there did not file any grievance with the prison at all, but with another agency altogether, the Americans with Disabilities Board.
Plaintiff argues that the prison's grievance procedures permit a prisoner's attorney to file a grievance to the chief operating officer of the prison institution. The only evidence that Plaintiff cites to support this position is counsel's declaration, in which he states that he cross-examined Captain Richard Barrantes, a Los Angeles County Jail system supervisor, in another case, and that Barrantes admitted that there were two sets of complaint files, one for the inmates themselves, and another for those made on their behalf. Plaintiff's counsel's representation of what occurred during cross-examination in another trial is not persuasive or admissible evidence of the prison's procedures.
Defendants do not discuss whether there is in fact an alternative procedure or what that procedure may be.
Although the Ninth Circuit has not directly addressed this issue, other circuits have required that the plaintiff prisoner exhaust all administrative remedies that are available to him. Massey v. Wheeler, 221 F.3d 1030 (7th Cir. 2000); Lavista v. Beeler, 195 F.3d 254, 257 (6th Cir. 1999) ("Congress intended the exhaustion requirement to apply to the prison's grievance procedures, regardless of what other administrative remedies might also be available."). Plaintiff has not shown that the remedy of submitting the complaint form as described above was not available to him. He has not stated why he did not use that procedure. The fact that there may have been another means of remedy available through his attorney filing a grievance does not mean that he is excused from the prison's established complaint procedure.
Defendants have met their burden of establishing an administrative procedure that was in place when Plaintiff was injured and when he filed the complaint. Plaintiff did not submit a complaint form as provided for in those procedures, and Plaintiff thus did not exhaust his available administrative remedies. The Court GRANTS the Motion on this ground. A complaint dismissed for failure to exhaust administrative remedies is dismissed without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The Second Amended Complaint is therefore dismissed without prejudice.
IT IS SO ORDERED.