Opinion
C083387
10-03-2017
TONY R. LOW, Plaintiff and Appellant, v. RON BARNES et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JC57738)
Plaintiff and appellant Tony R. Low, an incarcerated person representing himself in propia persona, appeals from a judgment dismissing his claims against various employees of the Department of Corrections and Rehabilitation (Corrections) without leave to amend on the grounds that he failed to exhaust his administrative remedies. The dismissed complaint raised allegations that Low was improperly denied outdoor exercise and subjected to an unnecessarily long period in mechanical restraints. While Low raises various claims on appeal, we reverse on the basis that his administrative remedies were sufficiently exhausted to allow these core allegations to proceed.
I. BACKGROUND
In an appeal from a judgment of dismissal after the sustaining of a demurrer, "we take the facts from plaintiff's complaint, the allegations of which are deemed true for the limited purpose of determining whether the plaintiff has stated a viable cause of action." (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.)
Low's original complaint included claims under section 1983 of title 42 of the United States Code and was removed to federal court. Low then filed a motion to remand and an amended complaint alleging only state law claims. In August 2015, the federal district court granted the motion to remand. In February 2016, Low filed a motion asking the Lassen County Superior Court to acquire jurisdiction. The court granted the motion contingent on Low filing the amended complaint. In March 2016, Low filed an amended complaint alleging claims for negligence and intentional tort as well as violations of various California statutory and regulatory provisions. Low sued respondent Ron Barnes in his individual capacity and in his official capacity as the warden of High Desert State Prison. Respondent Fred Foulk was sued in his individual capacity and in his official capacity as the acting warden. Facility B Commander R. Kirch, Associate Warden S. Peery, four Facility B correctional sergeants, and two correctional officers (Collins and Brown) were sued in their individual capacities.
The operative complaint alleges Low was confined to his cell in Facility B at High Desert State Prison from August 20, 2012, until October 12, 2012, and denied outdoor exercise. It also alleges that Warden Barnes, through Acting Warden Foulk, ordered the prison into a modified program through most or all of that time that deprived Low of out-of-cell exercise and required that all out-of-cell movement be by escort in restraints. Commander Kirch was responsible for ensuring the modified program orders were followed and that inmates were permitted outdoor exercise. Apparently consistent with these institutional directives, the correctional sergeant respondents did not allow Low outdoor exercise during this time period. Further, the complaint alleges that Associate Warden Peery's response to Low's initial administrative appeal kept him in a modified program contrary to the reasons stated in the modified program orders.
The complaint also alleges that on September 13, 2012, during the modified program, Collins placed Low into mechanical restraints behind his back and escorted him to the dining hall. Five hours later, Brown escorted Low back to his housing unit but did not remove the mechanical restraints. The restraints were removed eight hours after Low was originally placed in them when he was returned to his cell. Low alleges he experienced emotional distress, pain and suffering, and injury as a result of the "actions, policies, or omissions to act" he described.
Low filed administrative appeals related to both his lack of outdoor exercise and the use of restraints on September 13, 2012. Respondents demurred on the ground that Low failed to exhaust his administrative remedies by not naming any respondents in his initial administrative appeal documents and not naming respondents Collins and Brown at all at the administrative level.
The trial court sustained respondents' demurrer without leave to amend. It explained that "[respondents] demurred to the amended complaint under Code of Civil Procedure section 430.10, subdivision (a), and Code of Civil Procedure section 430.10, subdivision (e), arguing that [Low] failed to exhaust his administrative remedies prior to filing suit. [Low] opposed the demurrer, citing a series of exceptions and requesting judicial notice of Reyes v. Smith[] (9th Cir. 2016) 810 F.3d 654 [(Reyes)]. In turn, [respondents] showed Reyes did not control here and [Low] failed to comply with the procedural requirements of exhaustion under Title 15 [of the California Code of Regulations]." The court denied Low's request for judicial notice "for failing to comply with California Rules of Court, rule 3.1306."
The trial court dismissed the action with prejudice. Notice of entry of the judgment was filed on September 30, 2016. Low timely appealed.
II. DISCUSSION
A. Standard of Review
"It is well established that a demurrer tests the legal sufficiency of the complaint. [Citations.] On appeal from a dismissal entered after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the [complaint] states a cause of action as a matter of law. [Citations.] We give the [complaint] a reasonable interpretation, reading it as a whole and viewing its parts in context. [Citations.] We deem to be true all material facts that were properly pled. [Citation.] We must also accept as true those facts that may be implied or inferred from those expressly alleged. [Citation.] We may also consider matters that may be judicially noticed, but do not accept contentions, deductions or conclusions of fact or law. [Citation.]" (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869-870; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
"If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]" (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) B. Allegations Regarding the Filing of Documents
Low argues that the clerk of the superior court improperly rejected several of his filings. Even if this were true, "[n]o judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) "Prejudice is not presumed, and the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred." (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) Low does not explain how these rejected filings relate to the trial court's decision to dismiss his complaint nor does he argue that he was prejudiced by the rejection of any particular filing. Accordingly, he cannot succeed on this appellate claim. C. Jurisdiction
Low argues the superior court "held continuous concurrent jurisdiction throughout the proceeding in Federal District Court and reaquired [sic] original jurisdiction" when the case was ordered remanded to the superior court. In fact, the superior court lost jurisdiction over the matter when respondents filed their notice of removal. (Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App.4th 348, 356.) Low promises his argument "is critical to several issues arising out of the question of jurisdiction" but it is unclear what they are. Low does assert respondents refused to provide discovery materials twice because they believed the court did not reacquire jurisdiction over the action. But Low cites nothing in the record to indicate that he ever moved to compel the production of documents or that the trial court ever ruled on such a motion. As such, there is nothing for us to review. D. Demurrer
To the extent Low refers to his arguments concerning the timeliness of respondents' demurrer, we need not reach these because we reverse the trial court's judgment on other grounds.
1. The Trial Court's Order
Low complains the trial court did not state the grounds for sustaining the demurrer as required by Code of Civil Procedure section 472d. He is incorrect. The court explained respondents demurred on the grounds that the court lacked jurisdiction and Low failed to state sufficient facts to constitute a cause of action because he did not exhaust his administrative remedies. (Code Civ. Proc., § 430.10, subds. (a), (e).) Then, the court explained that respondents showed Reyes, supra, 810 F.3d 654 "did not control here and [Low] failed to comply with the procedural requirements of exhaustion under Title 15 [of the California Code of Regulations]." This was sufficient. The court may, but is not required to, state the grounds "by reference to appropriate pages and paragraphs of the demurrer." (Code Civ. Proc., § 472d.) We find the trial court's order sufficient and reject Low's claim of error.
Having identified the basis for the trial court's decision, we will now turn to its merits.
2. Exhaustion of Administrative Remedies
Low asserts the trial court erred by denying his request for judicial notice of Reyes. Additionally, he argues Reyes is controlling.
As a threshold matter, it appears the trial court denied Low's request for judicial notice under California Rules of Court, rule 3.1306(c) because he did not provide a copy of the opinion to respondents. Low's citation to the docket sheet does not demonstrate otherwise. Whether the case should have been judicially noticed is ultimately irrelevant because the trial court did analyze whether Reyes applied. Therefore, the dispositive question is whether the trial court correctly determined that Low failed to exhaust his administrative remedies.
"Under both state and federal law, a prisoner must exhaust available administrative remedies before seeking judicial relief." (Wright v. State of California (2004) 122 Cal.App.4th 659, 664.) Under California law, "exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts." (Abelleira v. District Court of Appeal, Third Dist. (1941) 17 Cal.2d 280, 293.) "As Witkin explains: 'The administrative tribunal is created by law to adjudicate the issue sought to be presented to the court. The claim or "cause of action" is within the special jurisdiction of the administrative tribunal, and the courts may act only to review the final administrative determination. If a court allowed a suit to be maintained prior to such final determination, it would be interfering with the subject matter jurisdiction of another tribunal.' " (Rojo v. Kliger (1990) 52 Cal.3d 65, 85, quoting 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 234, p. 265.)
"California prison regulations establish a multilevel administrative review process for the resolution of prison grievances." (Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1380; see Cal. Code Regs., tit. 15, §§ 3084.1-3084.8.) They provide that a prisoner may seek review by appeal of "any policy, decision, action, condition, or omission by the department or its staff" that has a material adverse effect upon his "health, safety, or welfare." (Cal. Code Regs., tit. 15, § 3084.1, subd. (a).) The prisoner must use a Corrections' form 602 to describe the issue under appeal and the relief requested. (Cal. Code Regs., tit. 15, § 3084.2, subd. (a).) The prisoner must also "list all staff member(s) involved and . . . describe their involvement in the issue. To assist in the identification of staff members, the inmate . . . shall include the staff member's last name, first initial, title or position, if known, and the dates of the staff member's involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying information about the staff member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question." (Id., subd. (a)(3).)
Administrative remedies are not deemed exhausted until after the third and final level of review. (Cal. Code Regs., tit. 15, § 3084.1, subd. (b).) Additionally, administrative remedies are not deemed exhausted as to any new issue, information or person not included in the originally submitted Corrections' form 602. (Ibid.)
"Requiring proper exhaustion of administrative remedies in accordance with these procedures serves multiple goals: it may mitigate damages; promote judicial economy; encourage prisoners to make full use of the prison grievance processes; provide prisons with a fair opportunity to correct their own errors; reduce the quantity of prisoner suits; and provide a record for courts to review." (Parthemore v. Col, supra, 221 Cal.App.4th at p. 1380.)
In Reyes, the Ninth Circuit, applying the federal Prison Litigation Reform Act of 1995 (PLRA) (42 U.S.C. § 1997e), analyzed whether a prisoner exhausted his administrative remedies under the California prison grievance system despite failing to name all staff members involved in the case. (Reyes, supra, 810 F.3d at p. 657.) Reyes had filed an action under section 1983 of title 42 of the United States Code against two members of his prison's Pain Management Committee and other prison officials alleging they violated the Eighth Amendment of the United States Constitution through deliberate indifference to his medical needs. (Reyes, supra, at p. 656.) Reyes's prison grievance alleged changes to his medical regimen and that a nurse refused to prescribe anything but aspirin, but failed to name any other staff members. (Ibid.) The third level appeal (the final administrative appeal) decision referred to a recommendation by the Pain Management Committee and ended by stating that the decision exhausted Reyes's available administrative remedies. (Ibid.) The Ninth Circuit held that exhaustion occurs under the PLRA where the prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process. (Id. at p. 658.) Under these circumstances, the court explained that the state's interests in administrative exhaustion have been served. (Id. at p. 657.) "Prison officials have had the opportunity to address the grievance and correct their own errors and an administrative record has been developed." (Ibid.) Moreover, dismissing a claim for failure to exhaust under these circumstances would "not advance the statutory goal of avoiding unnecessary interference in prison administration. [Citation.] Rather, it prevents the courts from considering a claim that has already been fully vetted within the prison system." (Id. at p. 658.) Additionally, "[d]eclining to enforce procedural rules when prison officials fail to do so also serves the state's interests in 'deciding when to waive or enforce its own rules.' " (Ibid.) Put simply, the Ninth Circuit held that when prison officials choose not to block an administrative appeal based on a procedural defect, but instead adjudicate the merits of the claim, the inmate will be deemed to have exhausted administrative remedies.
Respondents counter that Reyes is not binding, the present facts are distinguishable and that no waiver occurred, but fail to explain why the analysis applied by the Reyes court is not persuasive. In particular, respondents note that, with respect to the appeal regarding lack of outdoor exercise, Low was asked if he could identify any individual staff member that denied him access to yard or dayroom activities and he was not able to do so. Respondents argue that "contrary to the regulations, Low did not describe the staff involved, so that the institution could reasonably identify or discover the participants." In the trial court, respondents argued only a failure to identify the staff members and not a failure to provide "any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question." (Cal. Code Regs., tit. 15, § 3084.2, subd. (a)(3).) Regardless, neither argument was advanced as a procedural bar at the administrative level. Even at the first level review, Low's appeals were decided on the merits with the explanation that the lack of outdoor exercise and the use of restraints during a mass cell search on September 13, 2012, were due to administrative programs put in place by the warden and facility administrators, including the modified program. At all levels of review, Low's appeals were decided on the merits with no invocation of a procedural bar. At the third level of review, each decision concludes by stating that "[t]his decision exhausts the administrative remedy available to the appellant within [Corrections]."
Respondents assert that Low added allegations about the modified program and the individuals involved after the first level review of his outdoor exercise claim. We considered only Low's original grievance for purposes of our analysis. (Cal. Code Regs., tit. 15, § 3084.1, subd. (b).) We are not, however, necessarily convinced that Low added allegations regarding the modified program at the second level of review. Rather, he responded to arguments raised by the first level review decision regarding the modified program.
Under these circumstances, we reach the same conclusion as Reyes. Low's complaint and prison grievance describe the same general facts, and as the appeal revealed and the complaint pleads, the thrust of Low's allegations are that he was injured by various prison policies. Prison officials identified these policies and defended them on the merits at the administrative level. Because the challenged conduct arises from administrative polices, and not isolated conduct by an individual employee, we are not surprised that the administrative process could proceed without the names of the individual employees involved. Each of Low's administrative appeals concluded with a decision stating that Low had exhausted his administrative remedies. It would therefore appear that Low provided sufficient "information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question." (Cal. Code Regs., tit. 15, § 3084.2, subd. (a)(3).) Moreover, no purpose would be served by entirely barring Low's claims because of a procedural defect that no prison official advanced at the administrative level. Indeed, it would only prevent the courts from considering a claim that was already fully vetted within the prison system. (Reyes, supra, 810 F.3d at p. 658.) Low made full use of the prison grievance process, and the prison was given a fair opportunity to correct the policies at issue and provide a record for courts to review. (See Parthemore v. Col, supra, 221 Cal.App.4th at p. 1380.) Whether each of the individual respondents is a proper defendant in this action is a question that neither party raised on appeal and will be settled another day. But Low has stated a claim, regarding policy-driven restrictions to his movement, to which he exhausted his administrative remedies and therefore the trial court's dismissal of his entire action with prejudice was unwarranted.
Because we reverse on these grounds, we need not reach the merits of Low's other arguments concerning the trial court's decision or the conduct of the hearing.
III. DISPOSITION
The judgment is reversed and the cause is remanded to the trial court for further proceedings consistent with the views stated herein. It is our expectation that Low's complaint against Corrections will be allowed to proceed, but we do not opine on whether inclusion of the individual defendants is substantively or procedurally proper. Tony R. Low shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/_________
RENNER, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
HOCH, J.