Opinion
Case No. 1:03-CV-6464-REC-SMS-P, FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE DENIED (Doc. 26).
August 29, 2005
I. Defendants' Motion to Dismiss for Failure to Exhaust
A. Procedural History
Plaintiff Abraham Romero ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's complaint, filed August 25, 2003, against defendants Coffee, Wilson, Baptiste, and Samms ("defendants") under section 1983 for use of excessive force in violation of the Eighth Amendment, and under California law for assault and battery. On March 25, 2005, pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b), defendants filed a motion to dismiss for failure to exhaust the available administrative remedies. (Doc. 26.) Plaintiff filed an opposition to the motion on April 15, 2005, and defendants filed a reply on April 21, 2005. (Docs. 28, 29.)
Plaintiff was provided with notice of the requirements for opposing an unenumerated Rule 12(b) motion on November 4, 2004.Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 14 (9th Cir. 2003). (Doc. 15.)
B. Exhaustion Requirement
Pursuant to the Prison Litigation Reform Act of 1995, "[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). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 435 U.S. 516, 532 (2002). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001). "All `available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective.'"Porter, 534 U.S. at 524 (citing to Booth, 532 U.S. at 739 n. 5). Exhaustion must occur prior to filing suit. McKinney v. Carey, 311 F.3d 1198, 11991-201 (9th Cir. 2002). Plaintiff may not exhaust while the suit is pending. McKinney, 311 F.3d at 1199-1201.
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084, et seq. "Any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can reasonably demonstrate as having an adverse effect upon their welfare."Id. at 3084.1(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Cal. Code Regs. tit 15, § 3084.5 (2005).
Section 1997e(a) does not impose a pleading requirement, but rather, 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). The failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int'l Longshoremen's Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id.
C. Discussion
This action is proceeding on plaintiff's excessive force, and assault and battery claims. The events giving rise to plaintiff's claims allegedly occurred at the California Substance Abuse Treatment Facility in Corcoran, California on January 15, 2003.
In their motion to dismiss, defendants argue that they are entitled to dismissal of this action because plaintiff failed to exhaust the available administrative remedies with respect to the claims in this action. (Doc. 26, Motion.) In support of their motion, defendants submit evidence that plaintiff filed an appeal in February of 2003, which was ultimately granted at the second level of review. (Id., Acuna Dec., Attach. p. 1-7.) Although plaintiff attempted to pursue the appeal to the Director's level, it was rejected because it had been granted at the second level. (Id., Grannis Dec., ¶ 4.) The appeal, log number 03-01119, was initiated to grieve plaintiff's placement in administrative segregation. (Id., Acuna Dec., Attach. p. 1.) Although after initiating the appeal plaintiff attempted to expand the appeal issue to include the incident of force, plaintiff was informed that he could not do so and if he wanted to appeal the force issue, he needed to file a new appeal. (Id., Acuna Dec., Attach. p. 1-7.)
In addition, defendants submit evidence that on March 9, 2003, plaintiff filed another appeal concerning his missing personal property. (Id., Acuna Dec., Attach. p. 24-25.) This appeal, log number 03-01147, was granted at the second level of review and did not include the issue relating to the incident of force. (Id., Acuna Dec., Attach. pgs. 24-27.) Defendants contend that neither appeal is sufficient to exhaust the claims in this action, and that they are entitled to dismissal.
In his opposition, plaintiff argues that he did exhaust. (Doc. 28, Opp.) In addition to the two inmate appeals identified by defendants, plaintiff submits evidence that on August 5, 2003, he filed an inmate appeal grieving the incident of force at issue in this action. (Id., Exhibit 2, p. 3.) On August 7, 2003, the appeal was screened out by the appeals coordinator on the ground that it was untimely. (Id., p. 1.) Plaintiff wrote a letter to the appeals coordinator on August 19, 2003, stating that he believed his appeal had been wrongly rejected. (Id., p. 2.) The appeal form bears a second date stamp for August 20, 2005, and bears the notation "rejected." (Id., p. 3.)
Satisfaction of the exhaustion requirement does not require that inmates draft grievances with the precision of an attorney, laying out every fact, identifying every defendant by name, and identifying which constitutional rights were violated by which actions or omissions. However, satisfaction of the exhaustion requirement requires that inmates, in their grievances, place prison personnel on fair notice as to the events that subsequently give rise to suit. In this instance, the appeals concerning placement in administrative segregation and the loss of personal property do not satisfy the exhaustion requirement with respect to the claims in this action. Therefore, neither log number 03-01119, filed in February of 2003, nor log number 03-01147, filed in March of 2003, demonstrate that plaintiff exhausted.
Plaintiff's third appeal does, however. Although defendants argue in their reply that plaintiff may not fail to timely appeal the force issue and then claim exhaustion has occurred, plaintiff may now do exactly that. In this Circuit, exhaustion occurs when all avenues of administrative relief available are completed.Ngo v. Woodford, 403 F.3d 620, 631 (9th Cir. 2005). Further, the "exhaustion requirement does not bar subsequent judicial consideration of an exhausted administrative appeal that was denied on state procedural grounds." Id.
In this instance, plaintiff did not attempt to appeal his excessive force, and assault and battery claims until August 5, 2003. The appeals coordinator thereafter exercised his or her discretion to twice screen out plaintiff's appeal as untimely. In light of the Ninth Circuit's decision in Ngo, the appeals coordinator's decision to screen out plaintiff's appeal as untimely ends the exhaustion inquiry. Id. at 631. Exhaustion occurred when plaintiff's appeal was barred by the appeals coordinator on procedural grounds and "no further level of appeal remained in the state prison's internal appeals process." Id. Accordingly, the court finds that plaintiff exhausted his claims and recommends that defendants' motion to dismiss on the ground that plaintiff failed to exhaust be denied.
D. Conclusion
Accordingly, based on the foregoing, the court HEREBY RECOMMENDS that defendants' unenumerated Rule 12(b) motion, filed March 25, 2005, be DENIED on the ground that exhaustion occurred in August of 2003, when plaintiff's appeal was screened out.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, the parties may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." 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).
IT IS SO ORDERED.