Opinion
Case No. 2:19-cv-00147-TLN-JDP (PC)
01-11-2021
ROGELIO MAY RUIZ, Plaintiff, v. C. SADLER, Defendant.
ORDER DENYING APPOINTMENT OF COUNSEL ECF No. 31 FINDINGS AND RECOMMENDATIONS THAT DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BE GRANTED OBJECTIONS DUE IN 14 DAYS ECF No. 29
Plaintiff Rogelio May Ruiz is a state prisoner proceeding without counsel in this civil rights action brought under 42 U.S.C. § 1983. He claims that another inmate tried to attack him on August 22, 2018. ECF No. 14 at 3. After the attacker was restrained, defendant Sadler allegedly used excessive force against plaintiff, forcing him to the floor and causing injuries to his hand and head. Id. Defendant Sadler has filed a motion to dismiss, arguing that plaintiff's failure to exhaust administrative remedies is apparent from the face of the complaint. ECF No. 29. Plaintiff has filed an opposition and a request for counsel, ECF No. 31, and defendant Sadler has filed a reply, ECF No. 33. I recommend that defendant Sadler's motion be granted because the complaint on its face shows that plaintiff did not exhaust his third-level administrative remedies, and plaintiff's arguments for excusing the exhaustion requirement—though perhaps compelling as a matter of equity—lack legal support.
Appointment of Counsel
Before addressing the motion to dismiss, I consider plaintiff's request for counsel. He argues that counsel should be appointed because he does not speak fluent English and cannot understand legal rules or terms. ECF No. 31 at 1. I am sympathetic to the difficulty pro se prisoners face in litigating their cases, especially those with limited English comprehension. But plaintiff does not have a constitutional right to appointed counsel, see Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and I lack the authority to require an attorney to represent plaintiff. See Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). I could request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) ("The court may request an attorney to represent any person unable to afford counsel"); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, I will seek volunteer counsel only in exceptional circumstances. In assessing whether such circumstances exist, "[I] must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved." Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). Here, considering plaintiff's failure to exhaust administrative remedies, I cannot conclude that he is likely to succeed.
Motion to Dismiss
A motion to dismiss brought under Rule 12(b)(6) tests the legal sufficiency of a claim, and granting the motion is proper if there is no cognizable legal theory of liability or if insufficient facts are alleged to support a cognizable theory. See Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). A court's review is generally limited to the operative pleading. See Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). A pleading is sufficient under Rule 8(a)(2) if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief" that gives "the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Additionally, a court must construe a pro se litigant's complaint liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), and may only dismiss such a complaint "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017) (quoting Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)).
A defendant may raise the issue of administrative exhaustion in cases where failure to exhaust is obvious from the face of the complaint. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc). Under 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). This statutory exhaustion requirement "applies to all inmate suits about prison life," Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001). Unexhausted claims must be dismissed. See Jones v. Bock, 549 U.S. 199, 211 (2007). A prison's own grievance process, not the PLRA, determines how detailed a grievance must be to satisfy the PLRA exhaustion requirement. Id. at 218. The administrative remedy process of the California Department of Corrections and Rehabilitation ("CDCR") is applicable here. See Cal. Code of Regs. tit. 15, § 3084 (2019). To exhaust available remedies during the relevant time period, an inmate must proceed through three formal levels of review unless otherwise excused under the regulations. Id. § 3084.1(b). Cancellation or rejection of a grievance does not exhaust administrative remedies. Id.
As of June 2020, the CDCR administrative appeal regulations have been repealed and replaced. ECF No. 29-1 at 5 n.5. The newer regulations do not govern exhaustion in this action, however. --------
Plaintiff attached his grievances to the operative complaint, ECF No. 14, showing that he exhausted the first two levels of review. Id. at 7-10, 12-13. His grievance was rejected at the third level of review for failure to include a "CDCR Form 1858, Rights and Responsibilities Statement." Id. at 26. The rejection informed plaintiff that he could correct the problem and resubmit his grievance. Id. It also stated that, if he did not take timely corrective action, his grievance would be cancelled, and a separate grievance could be filed on the cancellation decision. Id. In his opposition, plaintiff concedes that he did not resubmit his rejected grievance or appeal a cancelled grievance. ECF No. 31 at 2. He raises three arguments as to why his failure to exhaust third level administrative remedies should be excused. None find traction in the law.
First, plaintiff argues that he did not understand the third level rejection notice because of his limited English. Id. In Ross v. Blake, the Supreme Court held that "the PLRA's text suggests no limits on an inmate's obligation to exhaust—irrespective of any 'special circumstances.'" 136 S. Ct. 1850, 1856 (2016). Another court in this district recently held that, under Ross, an inmate who was unable to read or write was not excused of his obligations to exhaust. Ramirez v. Rose, No. 2:19-cv-0827-KJN-P, 2020 U.S. Dist. LEXIS 68196, * 16 (E.D. Cal. Mar.4, 2020), adopted at 2020 U.S. Dist. LEXIS 68142 (E.D. Cal., Apr. 16, 2020) ("The undersigned is sympathetic to plaintiff's learning and reading disability and mental health needs. However, plaintiff cites no legal authority demonstrating that such conditions, standing alone, render administrative remedies unavailable, and this court has not found any."). Harsh though it may be, Ross leaves the court little flexibility: "mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion." 136 S. Ct. at 1857.
Second, plaintiff argues that he exhausted his administrative remedies because his grievance was partially granted at the second level. ECF No. 31 at 2-3. The CDCR regulations require third-level exhaustion, however, and it is those regulations that define exhaustion requirements for the PLRA. Jones, 549 U.S. at 218.
Third, plaintiff argues that he exhausted because he submitted his grievance, and no other "proof from a prison or hospital existed. ECF No. 31 at 3. His third-level grievance was not rejected because it lacked "proof," however, but because he did not submit a "Rights and Responsibilities Statement." Plaintiff does not dispute that he failed to submit such a statement.
Defendant Sadler's motion should be granted because, on the face of the complaint, plaintiff did not exhaust his administrative remedies as required by the CDCR regulations.
It is ORDERED that plaintiff's request for appointment of counsel (ECF No. 31) be DENIED.
Further, it is RECOMMENDED that defendant's motion to dismiss (ECF No. 29) be GRANTED and plaintiff's claims against him be dismissed without prejudice.
I submit these findings and recommendations to the district judge under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within 14 days of the service of the findings and recommendations, the parties may file written objections to the findings and recommendations with the court and serve a copy on all parties. That document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). IT IS SO ORDERED. Dated: January 11, 2021
/s/_________
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE