Opinion
No. CIV S-03-1224 GEB KJM P.
July 27, 2006
ORDER AND FINDINGS RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. Defendants have filed a motion to dismiss the second amended complaint for failure to exhaust administrative remedies and for failure to state a claim; plaintiff has filed a motion for a temporary restraining order and for preliminary injunctive relief.
I. The Allegations Of The Amended Complaint
Plaintiff alleges that defendant Stone denied plaintiff the right to receive the magazines Black Beauties and Black Tails. Defendants Kosub, Hubbard, Colon, Runnels, Bard, Rianda and Alameida learned of Stone's actions through the grievance process, but failed to intervene to cure the constitutional violation. 12/01/03 Amended Complaint (Am. Compl.) ¶ 15.
Defendant Thompson delayed giving plaintiff the bookPhilosophy and Revolution and failed to give him the bookWretched Of The Earth; he also failed to notify him that the books had been delayed and refused. Defendants Jackson and Wagner denied plaintiff's appeals about these subjects and defendants Runnels and Alameida did not respond to his letters outlining his claims of First Amendment violations. Am. Compl. ¶¶ 16-19.
The defendants have conspired to deprive plaintiff of his right to receive published material and, by mishandling the grievance procedure, to deprive him of his right of access to the courts. Am. Compl. ¶ 18.
II. Motion To Dismiss For Failure To Exhaust Administrative Remedies
The Prison Litigation Reform Act (PLRA) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Conditions of confinement" subject to exhaustion have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prisons." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). Proper exhaustion of available remedies is mandatory.Booth v. Churner, 532 U.S. 731, 741 (2001); Woodford v. Ngo, ___ U.S. ___, 126 S. Ct. 2378 (2006) (addressing timeliness aspect of proper exhaustion).
California prison regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5.
To satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint. Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case"); Brown v. Sikes, 212 F.3d 1205, 1209 (11th Cir. 2000) ("1997e(a) requires that a prisoner provide as much relevant information as he reasonably can in the administrative grievance process," but does not require that he do more than that).
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied sub nom. Alameida v. Wyatt, 540 U.S. 810 (2003). In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. Defendants bear the burden of proving plaintiff's failure to exhaust. Id. at 1119.
Defendants concede that plaintiff has exhausted his administrative remedies as to defendant Stone's alleged withholding of Black Beauties and Black Tails, but argues that he has failed properly or completely to exhaust administrative remedies as to the remaining defendants.
A. Runnels, Alameida, Hubbard, Kosub, Rianda And Corrective Measures
Defendants have submitted the declaration of J. Pearson, Acting Chief Of Inmate Appeals. Pearson avers that a review of the records of the Inmate Appeals Branch showed that plaintiff secured a Director's Level Decision on his grievance concerning defendant Stone's refusal to release his publications, but that he has not received such a decision concerning his claim that defendants Alameida, Hubbard, Kosub, Bard, Rianda and Hubbard failed to correct the violation after learning of the improper denial of the magazines. Declaration of J. Pearson (Pearson Decl.) ¶¶ 5, 7-8. The grievance about the magazines, Log No. 02-00389, is attached as Exhibit A to the Declaration.
The grievance form, a CDC 602, informs the inmate that he "may appeal any policy, action or decision which has a significant adverse affect upon you," and instructs him to "describe the problem." Pearson Decl., Ex. A. Plaintiff "describe[s] the problem" in part as follows:
The publication section of the CDC 1819 form specifically states that CCR, Title 15 section shall be cited when material (publications) meet its disapproval criteria. No such section was cited, therefore the publication meets the approval of the Director's rules, and, the withholding of the publication violates the 1st Amend. of the U.S. Const. "Id.
The filed photocopy of the grievance has cut some letters and numerals off the right side of the form, so that the reference appears to be to form 18. It appears that the form for disallowed publication is actually a CDC 1819. See Am. Compl., Ex. A (Notification Of Disapproval — Mail/Packages/Publications CDC 1819).
In Brown, cited above, plaintiff filed prison grievances over the alleged denial of medical care that became the basis of his civil rights suit. The district court dismissed the action, because plaintiff had not named the warden and the commissioner of corrections, both defendants, in the grievances. The Eleventh Circuit reversed, finding that exhaustion does not always bar suit against a person not named in the grievance. It noted:
[W]e conclude that while § 1997e(a) requires that a prisoner provide as much relevant information as he reasonably can in the administrative grievance process, it does not require that he do more than that.Id. at 1207. It continued:
But naming the warden and commissioner in a grievance simply because they are the top officials in charge of the prison would not have advanced any of the policies underlying the exhaustion requirement.Id. at 1209.
In Strong v. David, 297 F.3d 646 (7th Cir. 2002), the defendants contended dismissal of the plaintiff's civil rights action was proper because his grievances had not been detailed enough. The Seventh Circuit disagreed, holding that the specificity required to exhaust depends on the administrative system: "the grievances must contain the sort of information that the administrative system requires." Id. at 649. It cautioned:
The only constraint is that no prison system may establish a requirement inconsistent with the federal policy underlying § 1983 and § 1997e(a). Thus, for example, no administrative system may demand that the prisoner specify each remedy later sought in litigation — for Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) holds that § 1997e(a) requires each prisoner to exhaust a process not a remedy.Id. at 649-50 (citations omitted; emphasis in original).
In Irvin v. Zamora, 161 F. Supp. 2d 1125 (S.D. Cal. 2001), the District Court followed the lead of the Eleventh Circuit. The court observed:
[p]laintiff's grievances did present the relevant factual circumstances giving rise to a potential claim and did request the identities of the individuals directly responsible for spraying the pesticide. This was sufficient to put prison officials on notice of possible problems with these individuals. Plaintiff also requested that the prison conduct an investigation of the facts. As a result, the facts were investigated and developed, and the prison had an opportunity to exercise its discretion or correct any errors as appropriate under the circumstances. . . . In other words, plaintiff's grievances were sufficient under the circumstances to put the prison on notice of the potential claims and to fulfill the basic purposes of the exhaustion requirement.Id. at 1134-35. And as the Ninth Circuit has observed, when an inmate has followed the instruction on the grievance form to "describe the problem," he has "availed himself of the administrative process the state gave him." Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005).
In this case, plaintiff put the institution and ultimately the department on notice of his claim that his publications were withheld in violation of the department's own rules and the constitution. Requiring him to exhaust a separate claim based on the authorities' alleged failure to take corrective action after learning of the problem would "not . . . advance any of the policies underlying the exhaustion requirement." Brown, 212 F.3d at 1209. Plaintiff "described the problem" as directed by the grievance form, thus putting those with the power to correct it on notice.
B. Defendants Thompson, Jackson, Wagner, Runnels And Alameida And Philosophy Revolution And Wretched Of The Earth
Defendants argue that plaintiff did not receive a Director's Level Decision on a grievance about his delay in receivingPhilosophy Revolution or about the denial of his right to receive Wretched Of The Earth. Pearson Decl. ¶¶ 10-12. Plaintiff argues that he was prevented from grieving these violations, because he was never issued a CDC 1819, which must be attached to the grievance form. Opposition (Opp'n) at 6.
As part of Exhibit C to the Amended Complaint, plaintiff has provided a grievance without a log number, but stamped received by HDSP Appeals on August 28, 2003. In this grievance, plaintiff complains about his delayed receipt, without notification, ofPhilosophy and Revolution, and the deprivation, again without notification, of Wretched Of The Earth. On the lower right corner is a handwritten notation, "8/28/03 s/o #5 Attach 1819." An appeal screening form dated August 28, 2003 is attached, with several reasons checked. The first is that the appeal is a duplicate; the second is that "the appeal is incomplete or necessary supporting documents are not attached." Under this printed explanation, a box is checked, advising plaintiff to "attach copy of CDC-1819 (Notice of Disallowed Mail Form)" and to "provide proof of claim." This form is followed by plaintiff's letter, dated September 2, 2003, referring to the screening form of August 28, in which he notes that the grievance plainly stated he had not received notice through a CDC 1819 that his publication had been withheld.
Plaintiff has included a similar set of documents dealing specifically with the denial of Wretched of the Earth. This grievance, dated August 21, 2003, received a response at the informal level, but was rejected at the next level because of the failure to attach a CDC 1819. Plaintiff again complained, in a letter dated September 10, 2003, that he could not comply because he had not received the form. Am. Compl., Ex. C.
In Miller v. Tanner, 196 F.3d 1190, 1194 (11th Cir. 1999), the Court of Appeals found that the inmate had exhausted all available remedies even though he had not pursued his grievance to the highest level of review when the denial of his intermediate grievance stated "[w]hen any grievance is terminated at the institutional level you do not have the right to appeal. The above listed grievance(s) is closed." As the court noted, this statement told the inmate that further pursuit of his administrative remedies was not required and was "even prohibited." Id.
In Miller v. Norris, 247 F.3d 736 (8th Cir. 2001), plaintiff alleged he had not pursued administrative remedies because the prison refused to provide him with grievance forms. The court noted that "a remedy that prison officials prevent a prisoner from 'utiliz[ing]' is not an 'available' remedy under § 1997e."
In Brown v. Croak, 312 F.3d 109, 111-12 (3d Cir. 2002), the inmate alleged he was told by prison officials he should wait to file his grievance until an investigation into his claims of assault had been completed and only then could he pursue the administrative process if he was not satisfied with the result of the investigation. The Court of Appeals observed:
Assuming security officials told Brown to wait for the termination of the investigation before commencing a formal claim, and assuming the defendants never informed Brown that the investigation was completed, the formal grievance proceeding required by DC-ADM 804 was never "available" to Brown within the meaning of 42 U.S.C. § 1997e.Id. at 113.
Plaintiff has presented evidence suggesting that administrative remedies were not available to him because he had not received the CDC 1819, which caused his grievances about the Philosophy and Revolution and Wretched Of The Earth publications to be screened out. As in the two Miller cases and Brown, prison officials told plaintiff that he could not pursue his administrative remedies without a form that other officials had not provided to him and continued not to provide after plaintiff's followup letters.
Defendants have filed no reply to plaintiff's opposition, and thus have not explained what steps plaintiff could or should have taken that would have enabled him to follow the grievance process through to the Director's Level. Accordingly, defendants have not borne their burden of showing plaintiff failed to pursue available administrative remedies. This portion of the amended complaint has been exhausted.
C. Conspirary To Deny Plaintiff Access To The Courts And Deprive Him Of Publications
Defendants argue that plaintiff did not receive a Director's Level determination of any grievance concerning a conspiracy among defendants to deny him access to the courts and to deprive him of his right to receive published material. Pearson Decl. ¶¶ 13-14.
Plaintiff argues that he filed a grievance about the conspiracy, but that it, like those about the publications, was "rejected, ignored or interfered with by the defendants/prison officials . . .," and refers the court to Exhibit D of the Amended Complaint. Opp'n at 7. That exhibit is a grievance form, dated September 18, 2003, in which plaintiff mentions the conspiracy to deprive him of his rights. This grievance form has no attachments providing any reason for its rejection and no indication, by stamp or handwritten notation, that it was submitted to or received by the appeals office at High Desert State Prison. Moreover, plaintiff does not explain how or why the form was returned to him or even how he attempted to have it delivered to the appropriate parties. Accordingly, defendants have borne their burden by pointing to plaintiff's failure to exhaust administrative remedies as to his claim of conspiracy.
D. Total Exhaustion
Defendants argue that the entire action should be dismissed if any of the claims have not been exhausted. The Ninth Circuit has rejected this "total exhaustion" approach to civil rights claims, holding that "Congress intended no special dismissal rules for § 1983 prisoner suits in addition to those spelled out in § 1997e(c)." Lira v. Herrera, 427 F.3d 1164, 1175 (9th Cir. 2005), petition for cert. filed, 74 U.S.L.W. 3425 (Jan. 6, 2006) (No. 05-878). Accordingly, when a civil rights action contains exhausted and unexhausted claims, "a district court should simply dismiss the unexhausted claims when the unexhausted claims are not intertwined with the properly exhausted claims." Id. However,
when a plaintiff's "mixed" complaint includes exhausted and unexhausted claims that are closely related and difficult to untangle, dismissal of the defective complaint with leave to amend to allege only fully exhausted claims, is the proper approach.Id. at 1176 (emphasis in original).
Here, while the unexhausted claim is related to the others in the complaint, it is easy to untangle. The alleged conspiracy to deny plaintiff access to publications and to the court would require plaintiff to show a mutual understanding among conspirators to deprive plaintiff of constitutional rights, see Duvall v. Sharp, 905 F.2d 1188, 1189 (8th Cir. 1990), while the claims based on specific deprivations must be based on a showing that they are not "reasonably related to a legitimate penological objective." Turner v. Safley, 482 U.S. 78, 89 (1987). Because each claim has different elements, the exhausted claims can proceed separately from the one that is unexhausted, without prejudice to any party. Accordingly, the court will recommend that only the portion of the complaint alleging conspiracy be dismissed.
III. Motion To Dismiss For Failure To State A Claim
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers.Haines v. Kerner, 404 U.S. 519, 520 (1972). A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citingConley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981).
A. Wretched Of The Earth
Defendants argue that the informal response to plaintiff's grievance about this book shows that the book violated the CDC's policy against publications containing pictures of frontal nudity. Such a policy, they argue, has been upheld as constitutional in Frost v. Symington, 197 F.3d 348 (9th Cir. 1999) and Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999), and plaintiff has failed to refute the claimed reason for the rejection or otherwise challenge the policy. Motion to Dismiss (MTD) at 8.
Defendants have read the complaint and their own regulations too narrowly. Plaintiff alleges that the denial was without penological justification; construed liberally, this is indeed an attack on the claimed reason for the rejection and the policy underlying the action. See Turner v. Safley, 482 U.S. 78, 89 (1987) (practice that impinges on constitutional rights is valid if it is reasonably related to a legitimate penological objective). In addition, the regulation used to justify the rejection allows sexually explicit materials that meet the following criteria:
Educational, medical/scientific, or artistic materials, including, but not limited to, anatomy medical reference books, general practitioner reference books and/or guides, National Geographic, or artistic reference material depicting historical, modern, and/or post modern era art, purchased or possessed by inmates and approved by the institution head or their designee on a case-by-case basis.
15 Cal. Code Regs. § 3006(17)(B)(2). This court cannot find, at this stage, that plaintiff will be unable to show that Wretched Of The Earth, a book about political movements in colonial and post-colonial Africa, qualifies as an educational book.
The book is described as follows on the Amazon.com website:
A distinguished psychiatrist from Martinique who took part in the Algerian Nationalist Movement, Frantz Fanon was one of the most important theorists of revolutionary struggle, colonialism, and racial difference in history. Fanon's masterwork is a classic alongside Edward Said's Orientalism or The Autobiography of Malcolm X, and it is now available in a new translation that updates its language for a new generation of readers. The Wretched of the Earth is a brilliant analysis of the psychology of the colonized and their path to liberation. Bearing singular insight into the rage and frustration of colonized peoples, and the role of violence in effecting historical change, the book incisively attacks the twin perils of post independence colonial politics: the disenfranchisement of the masses by the elites on the one hand, and intertribal and interfaith animosities on the other. Fanon's analysis, a veritable handbook of social reorganization for leaders of emerging nations, has been reflected all too clearly in the corruption and violence that has plagued present-day Africa. The Wretched of the Earth has had a major impact on civil rights, anticolonialism, and black consciousness movements around the world. . . . See www.amazon.com (accessed on July 26, 2006).
Moreover, plaintiff has alleged that the book was withheld without notification. An inmate "has a Fourteenth Amendment due process liberty interest in receiving notice that his incoming mail is being withheld by prison authorities." Frost, 197 F.3d at 353. This portion of the complaint states a claim.
B. Philosophy And Revolution
Defendants argue that the complaint does not state a claim of a First Amendment violation because plaintiff eventually received this publication, albeit two months after it was delivered to the institution. MTD at 9.
While a short-term delay in mail delivery may not violate the First Amendment, this court cannot say that a two-month delay meets this definition in light of existing precedent. See Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (brief delay resulting from inspection may not violate First Amendment); cf. Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir. 1987) ("relatively short-term, non content-based disruption in the delivery of inmate reading materials will not support . . . a cause of action grounded upon the First Amendment"). Moreover, as noted above, plaintiff has alleged that he was not given notice that his mail was withheld, which also may be a sufficient basis for his First Amendment claim. Frost, 197 F.3d at 353.
C. Right To An Appeals Process
Defendants argue that those allegations of the complaint outlining their refusal to act after learning of constitutional violations during the appeals process do not state a claim because there is no right to an inmate grievance process. MTD at 9. As plaintiff argues, however, this portion of the complaint is not based on any perceived failure of the grievance process but rather on the defendants' actions in refusing to correct First Amendment violations at the prison.
D. Personal Involvement And Defendants Runnels, Alameida, Bard, Kosub, Rianda And Hubbard
These defendants argue that the complaint fails to state a claim against them because they were not personally involved in any First Amendment violations. Plaintiff alleges, however, that they had the ability to cure the violation, yet refused to act even after they received notice of it.
Liability may be imposed on an individual defendant under section 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a federally protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives another of a constitutional right within the meaning of section 1983 if he commits an affirmative act, participates in another's affirmative act or omits to perform an act that he is legally required to do and thereby causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. Thus, a supervisor may be liable under section 1983 upon a showing of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). "A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
IV. Defendant Colon
Plaintiff seeks to substitute the estate or personal representative of A. Colon after learning that this defendant is deceased. However, there is no indication that plaintiff's motion has been served on defendant Colon's estate in the manner contemplated by Federal Rules of Civil Procedure 25(a) and 4. The motion therefore will be denied.
V. Plaintiff's Motion For Injunctive Relief
Plaintiff has filed a motion for a temporary restraining order and preliminary injunction, alleging that officials at California State Prison — Corcoran, where he is currently housed, have deprived him of some pages of correspondence, issues of theJackson Advocate and San Francisco Bay View newspapers andMaoist newsletters. He seeks to restrain the warden of CSP-Corcoran and the Director of the Department of Corrections from violating his First Amendment rights.
The warden of CSP-Corcoran and the current Secretary of the Department of Corrections and Rehabilitation are not defendants in this action. This court is unable to issue an order against individuals who are not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969).
These are the new titles of the administrator and the department, respectively.
IT IS HEREBY ORDERED that:
1. Plaintiff's motion to substitute parties (docket no. 67) is denied; and
2. Plaintiff's motion for a temporary restraining order (docket no. 76) is denied.
IT IS HEREBY RECOMMENDED that defendants' motion to dismiss (docket no. 59) be granted on the ground that plaintiff failed to exhaust his claim that defendants conspired to deprive him of his rights to receive publications and of access to the courts, but denied in all other respects.
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)(l). Within twenty 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 reply to the objections shall be served and filed within ten 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. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).