Opinion
No. 2:14-cv-2458 MCE AC P
07-28-2016
TAJHIKEEM WOODS, Plaintiff, v. RODDRICK, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
I. Introduction
Plaintiff is a state prisoner under the authority of the California Department of Corrections and Rehabilitation (CDCR) who proceeds pro se and in forma pauperis with a civil rights action under 42 U.S.C. § 1983, challenging the conduct of correctional officials at High Desert State Prison (HDSP). Several matters are before the court: screening of plaintiff's original and amended complaints pursuant to 28 U.S.C. § 1915A, and review of plaintiff's requests for extraordinary relief. For the reasons that follow, this court recommends dismissal of this case without prejudice and denial of plaintiff's requests for extraordinary relief as moot.
II. Background
By order filed December 29, 2014, this court found that plaintiff's original complaint, //// //// filed October 13, 2014, ECF No. 1, stated potentially cognizable claims against defendant Correctional Officer Roddrick for excessive force and retaliation, but failed to state cognizable claims against the other named defendants, Correctional Sergeant Arnold and Correctional Captain Hale. See ECF No. 11. Plaintiff was accorded the option of proceeding on his original complaint against defendant Roddrick or filing an amended complaint.
Unless otherwise noted, petitioner's filing dates referenced herein are based on the prison mailbox rule, pursuant to which a document is deemed served or filed on the date a prisoner signs the document (or signs the proof of service, if later) and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266 (1988) (establishing prison mailbox rule); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010) (applying the mailbox rule to both state and federal filings by prisoners).
Plaintiff filed his First Amended Complaint (FAC) on January 19, 2015, naming defendants Roddrick, Arnold and Hale, as well as J. Ramsey, D. Davidge, T. Jackson, J. Sanchez, J. Mason, "et al." ECF No. 15 at 1. In separate filings, plaintiff requested that this court direct prison officials to stop retaliating against him for utilizing the prison grievance system, allegedly by interfering with plaintiff's access to food, legal materials, legal mail and the law library, and by threatening plaintiff with harm. See ECF Nos. 14, 16-7. Thereafter, plaintiff filed a notice of change of address, from HDSP to the California Substance Abuse Treatment Facility (CSATF) in Corcoran, indicating that he was transferred on February 26 and 27, 2015. See ECF Nos. 18-9.
On June 12, 2015, this court recommended dismissal of this action without prejudice because it appeared clear from both plaintiff's original complaint and FAC that he had failed to exhaust his administrative remedies on his claims before commencing this action. See ECF No. 20. The court also recommended that plaintiff's requests for extraordinary relief be denied as moot, due to his transfer from HDSP to CSATF. Id. Plaintiff filed objections in which he requested, inter alia, that the court undertake substantive review of this case without requiring the exhaustion of administrative remedies which plaintiff asserted were unavailable due to the alleged misconduct of prison officials. See ECF No. 23.
Following the district judge's adoption of the undersigned's findings and recommendations, and the dismissal of this case without prejudice, see ECF Nos. 24, 25, plaintiff filed a motion for protective order and notice that he had again been moved, this time to the California Health Care Facility (CHCF) in Stockton, see ECF Nos. 27-6. Plaintiff informed the court that he had attempted suicide on July 30, 2015 (during the period between the undersigned's findings and recommendations and the district judge's order adopting those findings and recommendations), due to "verbal/mental abuse" by correctional staff and alleged physical abuse resulting in an untreated foot injury. See ECF No. 27.
In an abundance of caution, the undersigned recommended that this case be reopened to reconsider the merits of plaintiff's FAC and to request that the Office of the California Attorney General (AG) investigate plaintiff's allegations concerning his conditions of confinement; the district judge agreed. See ECF Nos. 28, 32. This court asked the AG to contact CHCF authorities and file a status report. See ECF No. 28. On October 2, 2015, Deputy Attorney General (DAG) Martha Ehlenbach specially appeared to file a status report, which included the declarations of plaintiff's treating physician, Dr. K. Yusufzie, M.D., and treating psychiatrist, Dr. J. Johnson, M.D. See ECF No. 29. These declarations and the AG's status report indicate that plaintiff was then receiving regular mental and physical health evaluations and treatment, including an x-ray of his right foot to assess his allegedly untreated injury; that he was regularly receiving pain and psychotropic medications; and that plaintiff was not then exhibiting suicidal thoughts or behavior. Id.
Plaintiff filed objections to the DAG's status report and supporting declarations, and to the undersigned's most recent order and findings and recommendations. See ECF No. 30, 33. Plaintiff also filed a "motion for court order," seeking an order of this court directing staff at CHCF to stop retaliating against him; to provide plaintiff with his legal property; to adequately treat plaintiff's right foot; and to give plaintiff access to the law library and legal supplies. See ECF No. 31.
Thereafter, plaintiff notified the court that he had again been transferred, this time to Kern Valley State Prison (KVSP). See ECF No. 34. On January 4, 2016, plaintiff filed another motion for protective order, wherein he alleged that KVSP staff were "maliciously using the petitioner's mental health treatment as a tool to mentally tourture (sic) petitioner, for the very purpose of causing harm." ECF No. 35. That motion seeks a court order directing KVSP correctional officials to provide food when plaintiff is administered his psychotropic medication (Geodon), to alleviate side effects of stomach cramping and severe headaches. Id.
The following week, plaintiff informed the court that he had been moved to Salinas Valley State Prison (SVSP). ECF No. 36. On June 23, 2016, plaintiff informed the court that he had been moved to California State Prison-Los Angeles County (CSP-LAC), with an anticipated transfer to Folsom State Prison or to the CSP-LAC Enhanced Outpatient Program Yard. ECF No. 37. On July 29, 2016, plaintiff informed the court that he is again incarcerated at CHCF, and "admitted to the Department of State Hospital Stockton due to a suicide attempt." ECF No. 38. Review of CDCR's Inmate Locator website indicates that plaintiff, now age 26, currently remains incarcerated at CHCF.
See http://inmatelocator.cdcr.ca.gov/ (Inmate Locator website operated by the California Department of Corrections and Rehabilitation). This Court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201; see also City of Sausalito v. O'Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) ("We may take judicial notice of a record of a state agency not subject to reasonable dispute.").
To summarize, since commencing this action plaintiff has been transferred from HDSP to CSATF, to CHCF, to KVSP, to SVSP, to CSP-LAC, and back to CHCF, where plaintiff is presently incarcerated. Outstanding are three motions for intervention and/or preliminary injunctive relief at three of these locations, each including new allegations against newly-named correctional officials: (1) a "motion for protective order," challenging matters at CSATF, which was addressed by the AG's status report and supporting declarations, ECF No. 27; (2) a "motion for court order," challenging matters at CHCF, ECF No. 31; and (3) a "motion for order of protection," challenging matters at KVSP, ECF No. 35.
III. Screening and Administrative Exhaustion
A. Legal Standards
This court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). This court "shall" dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b). This court must construe pro se pleadings liberally, and must accord the plaintiff leave to amend unless it is clear that amendment could not cure the deficiencies in the complaint. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).
"The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust 'such administrative remedies as are available' before bringing suit to challenge prison conditions." Ross v. Blake, 136 S. Ct. 1850, 1854-55 (June 6, 2016) (quoting 42 U.S.C. § 1997e(a)). "There is no question that exhaustion is mandatory under the PLRA[.]" Jones v. Bock, 549 U.S. 199, 211 (2007) (citation omitted) (cited with approval in Ross, 136 S. Ct. at 1856). The exhaustion requirement is based on the important policy concern that prison officials should have "an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Jones, 549 U.S. at 204. The "exhaustion requirement does not allow a prisoner to file a complaint addressing non-exhausted claims." Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) ("a prisoner does not comply with [the exhaustion] requirement by exhausting available remedies during the course of the litigation").
Regardless of the relief sought, a prisoner must pursue an appeal through all levels of a prison's grievance process as long as some remedy remains available. "The obligation to exhaust 'available' remedies persists as long as some remedy remains 'available.' Once that is no longer the case, then there are no 'remedies . . . available,' and the prisoner need not further pursue the grievance." Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (original emphasis) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). "The only limit to § 1997e(a)'s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are 'available.'" Ross, 136 S. Ct. at 1862.
Thus, "an inmate is required to exhaust those, but only those, grievance procedures that are 'capable of use' to obtain 'some relief for the action complained of.'" Ross, 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 738). The Supreme Court has clarified that there are only "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Ross, at 1859. These circumstances are as follows: (1) the "administrative procedure . . . operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates;" (2) the "administrative scheme . . . [is] so opaque that it becomes, practically speaking, incapable of use . . . so that no ordinary prisoner can make sense of what it demands;" and (3) "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1859-60 (citations omitted). Other than these circumstances demonstrating the unavailability of an administrative remedy, the mandatory language of 42 U.S.C. § 1997e(a) "foreclose[es] judicial discretion," which "means a court may not excuse a failure to exhaust, even to take [special] circumstances into account." Ross, 136 S. Ct. at 1856-57.
Within the Ninth Circuit, dismissal of a prisoner civil rights action for failure to exhaust administrative remedies must generally be decided pursuant to a motion for summary judgment under Rule 56, Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc). The only exception is "[i]n the rare event that a failure to exhaust is clear on the face of the complaint." Id. at 1166 (authorizing defendant to move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6)); see also Jones, 549 at 215 (exhaustion is not a pleading requirement but an affirmative defense that, if apparent on the face of the complaint, may support dismissal); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) ("A prisoner's concession to nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies."), overruled on other grounds by Albino, supra, 747 F.3d at 1166; Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) ("Because Vaden did not exhaust his administrative remedies prior to sending his complaint to the district court, the district court must dismiss his suit without prejudice.") (citing Wyatt, 315 F.3d at 1120).
Even after Albino, when it is clear from the face of the complaint and any attached exhibits that a plaintiff did not exhaust his available administrative remedies before commencing an action, the action may be dismissed on screening for failure to state a claim. See 28 U.S.C. § 1915A(b)(1) (upon screening, "the court shall . . . dismiss the complaint, or any portion of the complaint, if the complaint (1) . . . fails to state a claim upon which relief may be granted"); 42 U.S.C. § 1997e (c)(2) ("In the event that a claim [] on its face . . . fails to state a claim upon which relief can be granted, . . . the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies."); see also Sorce v. Garikpaetiti, 2014 WL 2506213, at *3, 2014 U.S. Dist. LEXIS 76431, at *8 (S.D. Cal. May 30, 2014) ("based on Plaintiff's concession of nonexhaustion, which is clear and unequivocal on the face of his Complaint, the Court finds Plaintiff's case must be dismissed [on screening] for failing to state a claim upon which any relief may be granted") (citations omitted); Young v. Unnamed, Secretary of CDCR, 2014 WL 5176386, at*4, 2014 U.S. Dist. LEXIS 146472, at *8 (S.D. Cal. Oct. 14, 2014) (on screening and "based on Plaintiff's concession of nonexhaustion, which is clear and unequivocal on the face of his Complaint, the Court finds that even if Plaintiff had sufficiently alleged an Eighth Amendment claim against the Secretary, his Complaint would still be subject to dismissal . . . for failing to state a claim upon which relief can be granted") (citations omitted); Lucas v. Director of Dept. of Corrections, 2015 WL 1014037, at*4, 2015 U.S. Dist. LEXIS 27957, at *9 (E.D. Cal. Mar. 5, 2015) (on screening plaintiff's FAC, in which plaintiff conceded that he had not exhausted his administrative remedies before he commenced the action, the court found that plaintiff's "attempt to initiate federal litigation prior to his full administrative exhaustion requires dismissal of this civil action without prejudice to plaintiff's bringing of his now exhausted claims in a new civil action") (citations omitted); Eha v. California Institute for Men, 2015 WL 8664155, at *3, 2015 U.S. Dist. LEXIS 27957, at *8 (C.D. Cal. Dec. 10, 2015) ("Plaintiff's 'concession to nonexhaustion' in his Complaint and in his First Amended Complaint warrants dismissal at the pleading stage.") (citations omitted); Morehead v. Kern Valley State Prison, 2016 WL 3136034, at *2, 2016 U.S. Dist. LEXIS 72234, at *5 (E.D. Cal. June 2, 2016) (dismissing FAC on screening on the ground that,"[w]hile the Court typically grants leave to amend in a pro se cases (sic), Plaintiff's clearly conceded failure to exhaust cannot be cured by the allegation of additional facts.").
B. Pleadings and Grievances
Both plaintiff's original complaint and FAC challenge defendant Roddrick's alleged use of excessive force on August 31, 2014, when he reportedly slammed plaintiff's hand in his food tray slot in retaliation for plaintiff filing a grievance against Roddrick. Additional defendants are named based on their alleged failure to adequately respond to the incident. See ECF No. 1 at 4; ECF No. 15 at 3. Plaintiff concedes that he did not exhaust his administrative remedies on this matter before commencing this action, or before filing the FAC.
In his original complaint, filed October 13, 2014, plaintiff averred that his administrative remedies were then "in the first level." See ECF No. 1 at 2. The December 2014 order of this court, which found cognizable claims against defendant Roddrick, did not address this matter. See ECF No. 11. Plaintiff did not assert that the grievance process was unavailable to him, but implied that he was afraid to use the process. Exhibits to the complaint include plaintiff's administrative grievance submitted August 17, 2014 (Log No. HDSP-C-14-02461), and the First Level Response to that grievance issued September 3, 2014. See ECF No. 1 at 9-17. Although this grievance includes allegations against defendant Roddrick, it is not relevant to the allegations and claims asserted against Roddrick in plaintiff's original and amended complaints.
Plaintiff explained, ECF No. 1 at 2:
State Officials are retaliating against me, causing a substantial risk upon my well-being and safty (sic). The inmate grievance is in the first level and internal affairs is involved with the investigation but state officials are threatening inmates that are around me who witnessed the facts contained in this complaint.Plaintiff also "ask[ed] the courts to force the Prison to Grant a Safe remedy for exhaustion of administrative remedies[.]" Id. at 3.
In this grievance (Log No. HDSP-C-14-02461), plaintiff alleged that on August 17, 2014, he "became a victim of retaliation due to me not being able to attend worker yard and worker dayroom because I filed a 602 on C/O Mcnott (sic) [MacNaught] regarding me not being able to work." Id. at 14. Plaintiff explained that "Watch, C/O [MacNaught], Irish and Roddrick, didn't allow me to go to worker yard because I 602ed [MacNaught]." Id. at 16. Plaintiff expressed fear for his safety and life based on [MacNaught]'s alleged statement that "You'll regret ever filing a 602 against me. You must of (sic) forgot that I will be working in the tower." Id. Plaintiff further alleged that these actions were "racist and oppressive" because not directed "to Mexicans or the Others." Id. On August 20, 2014, three days after plaintiff submitted this grievance, the Inmate Appeals Office assigned it for First Level Review. ECF No. 1 at 11. The First Level Review decision was issued on September 3, 2014. Following an interview with plaintiff, staff construed plaintiff's retaliation claim as limited to MacNaught, and found that CDCR policy had not been violated. Id. at 9-10. On September 30, 2014, plaintiff challenged the First Level Review decision, asserting in part that he was also challenging the conduct of Roddrick and Irish as well as MacNaught. Id. at 15, 17.
Also attached to the original complaint is an October 7, 2014 letter to plaintiff from the HDSP Warden, noting plaintiff's correspondence with the Office of Internal Affairs about another grievance he had submitted (Log No. HDSP-C-14-02875), which alleged the use of excessive force. (Although not evident in this exhibit to the original complaint, a copy of the grievance is attached to the FAC and alleges excessive force by defendant Roddrick based on the August 31, 2014 incident.) The Warden's letter indicates that the grievance was then under First Level Review. ECF No. 1 at 23; see also id. at 26. The letter documented that, as a result of plaintiff's allegations, "a videotaped Use of Force interview" of plaintiff was held on September 24, 2014, and preserved as CDCR 3014 Log No. FF-14-09-0256. Id. at 23. No further information concerning this grievance was provided with the original complaint.
Thus, of the two grievances referenced in plaintiff's original complaint, only Log No. HDSP-C-14-02875 is relevant to the allegations of the complaint, but was then only "in first level review." ECF No. 1 at 2.
In his FAC, filed January 19, 2015, plaintiff again challenged defendant Roddrick's alleged retaliatory use of excessive force on August 31, 2014, and again stated that he had not exhausted his grievances, explaining only: "Prison officials are retaliating against me for filing grievances on this matter. The inmate grievance is in the second level at this current moment." ECF No. 15 at 2.
A copy of plaintiff's pertinent grievance (Log No. HDSP-C-14-02875) is included in the exhibits to the FAC. See ECF No. 15 at 36, 47. The grievance, submitted by plaintiff on September 29, 2014, alleges that on August 31, 2014, "C/O Roddrick used excessive force as a form of reprisal for filing 602 Log # HDSP-C-14-02461, by slaming (sic) my right hand in the tray slot. C/O Roddrick was working 2nd watch picking up breakfast trays, for top tier." ECF No. 15 at 36. The grievance further alleges that Roddrick conceded that his challenged conduct was in reprisal against plaintiff for naming Roddrick in a grievance. Id. at 47. The grievance also names as defendants Hale, Arnold, Ramsey and Nason. Id. Plaintiff's requested relief includes $750,000 damages from Roddrick; $90,000 jointly from Hale, Arnold and Ramsey "for doing nothing about the matter;" a discussion with the HDSP Warden; the firing of all responsible parties; and transfer of plaintiff to a therapeutic setting. Id.
Exhibits to the FAC demonstrate no further exhaustion past the First Level of plaintiff's unrelated grievance alleging retaliation premised on the denial of his access to the worker yard and dayroom on August 17, 2014 (Log No. HDSP-C-14-02461). See ECF No. 15 at 17-28.
On October 6, 2014, a week after plaintiff submitted this grievance, the Inmate Appeals Office assigned it for First Level Review. ECF No. 15 at 40. The First Level Review decision, issued on October 20, 2014, notes that the investigation of this grievance included interviewing plaintiff, correctional officers Roddrick and Nason, Facility C Captain Hale and Sergeant Arnold, and an inmate witness identified by plaintiff. The decision concluded that CDCR policy had not been violated but nonetheless "partially granted" plaintiff's grievance on the ground that "the Appeal Inquiry is complete, has been reviewed, and all issues were adequately addressed." Id. at 38.
There is no indication in the exhibits to the FAC that this relevant grievance was further exhausted past First Level Review. Although additional grievances are included as exhibits to the FAC and plaintiff's requests for extraordinary relief, none are relevant to plaintiff's allegations and claims against defendant Roddrick asserted in plaintiff's original and amended complaints.
The following additional unrelated grievances are included as exhibits to the FAC:
• Log No. HDSPC1403113: On October 14, 2014, plaintiff submitted this grievance alleging that C/O Joksch had refused to process plaintiff's legal mail. See ECF No. 15 at 72-5; see also ECF No. 14 at 5-8. The exhibits to the FAC include nothing further regarding plaintiff's pursuit of this grievance.
• Log No. HDSPC1403273: On October 29, 2014, plaintiff submitted this grievance alleging that C/O Joksch had twice refused to process plaintiff's legal mail (specifically, plaintiff's in forma pauperis application). ECF No. 15 at 61-2. On November 12, 2014, two weeks after plaintiff submitted this grievance, the Inmate Appeals Office assigned it for First Level Review. ECF No. 15 at 69. The FAC includes copies of the First and Second Level decisions addressing this grievance. The First Level decision, issued November 26, 2014, "partially granted" the grievance to the extent that staff had investigated plaintiff's allegations pursuant to two interviews with plaintiff, and interviews with Joksch and another correctional officer, both of whom reported that they had returned plaintiff's in forma pauperis applications with specific instructions how to prepare his correspondence and envelopes for acceptance and processing in accordance with departmental policy. Id. A completed in forma pauperis application was ultimately mailed out on November 4, 2014. Id. at 62. This grievance was referred for Second Level Review on December 11, 2014. ECF No. 15 at 65; see also ECF No. 14 at 4. The Second Level Review decision, issued January 2, 2015, also "partially granted" the grievance based on the fact of reviewing plaintiff's concerns, and concluded that the investigation and conclusion reached in the First Level decision were appropriate. ECF No. 15 at 63-4. The exhibits do not include any evidence that this grievance was further exhausted.
Plaintiff also attached additional grievances to his requests for extraordinary relief. See ECF Nos. 14, 27, 35. These include the following:
• Log No. HDSPD1403725: On December 24, 2014, plaintiff was informed that this grievance was assigned for First Level Review. See ECF No. 14 at 10. No other exhibits in plaintiff's numerous filings identify the claims that plaintiff pursued in this grievance.
• Log No. HDSP1500099: On January 5, 2015, plaintiff submitted this grievance seeking damages from another inmate who allegedly beat up plaintiff at the behest of prison officials, from whom plaintiff also sought damages. Plaintiff requested that the other inmate be disciplined, that plaintiff's own disciplinary ruling (see n.5, infra) be overturned, and that plaintiff be transferred to another institution. See ECF No. 27 at 7-10. The First Level Review decision, issued February 1, 2015 and based on interviews with plaintiff and six prison officials, concluded that no staff had violated CDCR policy. Id. at 11-2. The grievance was "partially granted" on the ground that a thorough inquiry of plaintiff's claims had been conducted. Id. The Second Level Review decision, issued March 4, 2015, reached the same conclusion. Id. at 13-5. Plaintiff received notification on July 29, 2015 that this grievance had been received for Third Level Review, see id. at 6, but the Third Level Review decision is not included in any of plaintiff's exhibits.
• Log No. KVSPHC15036736: On November 29, 2015, plaintiff submitted this Health Care Appeal, which he designated an emergency, requesting that he be provided an "Ensure drink" when administered his antipsychotic medication, Geodone, to reduce the side effects of "cramping nauseating stomach ache and dizzy like head-rush." See ECF No. 35 at 11-3. The appeal was partially granted on First Level Review based on a decision to switch the administration of plaintiff's medication to dinnertime. Id. at 9. In response, plaintiff withdrew his appeal. Id. at 12.
Exhibits to the FAC include documentation of a Rules Violation Report against plaintiff, including a disciplinary finding of guilt to the charge "fighting" with another inmate on November 4, 2014. Plaintiff refused to participate in the hearing and was assessed a 90-day credit loss and 10-day loss of exercise yard privilege beginning December 5, 2014. See ECF No. 15 at 42-59; see also ECF No. 27 at 16-21, 23.
C. Analysis
Review of plaintiff's original and amended complaints, and exhibits attached thereto, demonstrate that plaintiff did not exhaust his claims through HDSP's administrative grievance process before commencing this action. Rather, on September 29, 2014, plaintiff submitted to prison authorities his only grievance relevant to the allegations of this action (Log No. HDSP-C-14-02875), then filed his complaint two weeks later on October 13, 2014. On October 20, 2014, one week after plaintiff filed his complain, his grievance was "partially granted" on First Level Review.
Plaintiff has repeatedly attempted to persuade this court that administrative remedies have been unavailable to him due to the ongoing retaliation of prison officials in response to plaintiff's efforts to utilize the grievance system. In his original complaint, despite noting that his administrative remedies were "in the first level," plaintiff stated that he sought a "safe remedy for exhaustion." ECF No. 1 at 2, 3. In his FAC, despite stating that his grievance was "in the second level at this current moment," ECF No. 15 at 2, plaintiff sought preliminary injunctive relief to "allow the administrative remedies to be made available and exhausted," and a permanent injunction "ordering prison staff to cease their physical violence and threats toward plaintiff Woods, to stop the unsafe and harsh condition of his confinement and to allow the petitioner to safely utilize the grievance system," id. at 15. In his objections to the undersigned's prior recommendation that this case be dismissed for failure to exhaust administrative remedies, plaintiff asserted that administrative remedies were unavailable to him due to "the retaliation that came with the utilization of the appeal system." ECF No. 23 at 2.
The processing of plaintiff's grievance at the First Level one week after plaintiff filed his complaint contradicts plaintiff's assertion that administrative remedies were unavailable to him when he commenced this action. Plaintiff contends that he, like the plaintiff in Rhodes v. Robinson, 408 F.2d 559 (9th Cir. 2004), was required to abandon the administrative grievance process and appeal directly to the district court due to the retaliatory conduct of prison officials. See e.g. ECF No. 23 at 4. Plaintiff's reliance on Rhodes is misplaced. Although the fact is not explicitly stated in the cited decision, the Ninth Circuit subsequently noted, in Rhodes v. Robinson, 621 F.3d 1002, 1006 (9th Cir. 2010) (Rhodes II), that Rhodes had "asserted properly exhausted claims in his original complaint." In the same opinion, the Ninth Circuit again made clear that exhaustion of administrative remedies is a prerequisite to commencing suit, Rhodes II, 621 F.3d at 1004-05:
McKinney held that the PLRA's exhaustion requirement does not allow a prisoner to file a complaint addressing non-exhausted claims, even if the prisoner exhausts his administrative remedies while his case is pending. See 311 F.3d at 1199. Vaden held that a prisoner must exhaust his administrative remedies before he tenders his complaint to the district court. See 449 F.3d at 1050. Vaden also held that the claims which are exhausted after the complaint has been tendered to the district court, but before the district court grants him permission to proceed in forma pauperis and files his complaint, must be dismissed pursuant to § 1997e. See id. at 1050-51. Together, these cases stand for the proposition that a prisoner must exhaust his administrative remedies for the claims contained within his complaint before that complaint is tendered to the district court.
Although a plaintiff can add new claims that are newly exhausted in an amended complaint, the claims asserted in the original complaint (and re-alleged in an amended complaint) must have been exhausted when the action was commenced. Here, plaintiff's excessive force and retaliation claims against Roddrick (and other officials who allegedly failed to act in response to Roddrick's challenged conduct), asserted in both plaintiff's original and amended complaints, were not administratively exhausted when plaintiff filed his original complaint.
New claims, based on actions that took place after the original complaint was filed, are not barred under McKinney so long as the plaintiff exhausted them prior to filing the amended complaint. See Rhodes, 621 F.3d at 1005; see also Akhtar v. J. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012. Moreover, new claims based on actions that took place before the original complaint was filed are not barred under McKinney so long as the plaintiff exhausted them prior to filing the amended complaint. See Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 2014).
This court has considered whether the circumstances plaintiff alleges come within any of the "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Ross, 136 S. Ct. at 1859. In light of plaintiff's frequent use of the grievance process, and the decisions rendered in response to his six HDSP grievances, including the First Level decision on plaintiff's pertinent grievance (Log No. HDSP-C-14-02875), there appears to be no basis on which to conclude that HDSP's grievance procedures were "opaque" or an effective "dead end," the first two circumstances identified by the Supreme Court to support a finding of unavailability. Id. at 1859-60.
Nor does plaintiff's failure to exhaust this grievance prior to commencing this action appear to come within the third set of circumstances excusing exhaustion under Ross, viz., when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Ross at 1860. Although plaintiff's filings allege such conduct by prison officials in each of the facilities where he has been incarcerated, none of his allegations support an inference that plaintiff was thwarted by official misconduct from utilizing HDSP's grievance process prior to filing his complaint. That plaintiff submitted his grievance prior to filing his complaint, so informed the court in his original complaint, then received a First Level decision shortly after he filed his complaint, demonstrate just the opposite. Moreover, the prison's investigation into plaintiff's grievance appears to have addressed at least some of plaintiff's safety concerns. These factors fail to support a reasonable inference that prison administrators thwarted plaintiff's efforts to utilize HDSP's grievance process prior to filing his complaint. Hence, there appears to be no basis on which to conclude that HDSP's grievance procedures were unavailable under any of the circumstances recognized by the Supreme Court. Ross, 136 S. Ct. at 1859-60.
HDSP officials promptly undertook an apparently thorough investigation of plaintiff's claims against defendant Roddrick for excessive force and retaliation, and plaintiff's related claims against other HDSP officials, by conducting a videotaped interview of plaintiff premised on his allegations of excessive force, and by conducting additional interviews with four prison officials and another inmate. When plaintiff was interviewed by Captain Davidge and invited to provide "any additional information," he reportedly stated only, "No, my appeal stands as it is written and I don't have anything else to add." ECF No. 15 at 37.
The prompt consideration of plaintiff's relevant grievance on First Level Review, one week after plaintiff filed his initial complaint, demonstrates that administrative remedies were open and available to plaintiff when he filed his complaint. The possibility that plaintiff's subsequent transfers may have impacted his ability to further exhaust this grievance is not material in assessing plaintiff's options at the time he commenced this action.
For these reasons, this court finds that plaintiff's clear concession of nonexhaustion when he filed his original and amended complaints, underscored by his exhibits demonstrating the availability of administrative remedies when plaintiff commenced this action, require dismissal of this action without prejudice for failure to state a claim upon which relief may be granted. See Albino, 747 F.3d at 1169 (failure to exhaust warrants dismissal without prejudice for failure to state a claim). Moreover, under these circumstances, such dismissal is appropriate on screening. See 28 U.S.C. § 1915A(b)(1); 42 U.S.C. § 1997e (c)(2); accord Sorce v. Garikpaetiti, 2014 WL 2506213, at *3, 2014 U.S. Dist. LEXIS 76431, at *8 (S.D. Cal. May 30, 2014); Young v. Unnamed, Secretary of CDCR, 2014 WL 5176386, at*4, 2014 U.S. Dist. LEXIS 146472, at *8 (S.D. Cal. Oct. 14, 2014); Lucas v. Director of Dept. of Corrections, 2015 WL 1014037, at*4, 2015 U.S. Dist. LEXIS 27957, at *9 (E.D. Cal. Mar. 5, 2015); Eha v. California Institute for Men, 2015 WL 8664155, at *3, 2015 U.S. Dist. LEXIS 27957, at *8 (C.D. Cal. Dec. 10, 2015); //// Morehead v. Kern Valley State Prison, 2016 WL 3136034, at *2, 2016 U.S. Dist. LEXIS 72234, at *5 (E.D. Cal. June 2, 2016).
IV. Extraordinary Relief
The following motions for intervention and/or preliminary injunctive relief remain outstanding: (1) plaintiff's "motion for protective order," filed September 20, 2105, challenging matters at CSATF, which was addressed by the AG's status report and supporting declarations, ECF No. 27; (2) plaintiff's "motion for court order," filed October 7, 2015, challenging matters at CHCF, ECF No. 31; and (3) plaintiff's "motion for order of protection," filed January 4, 2016, challenging matters at KVSP, ECF No. 35.
A. Legal Standards
In cases brought by prisoners involving conditions of confinement, a preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct the harm." 18 U.S.C. § 3626(a)(2). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008). The principal purpose of preliminary injunctive relief is to preserve the court's power to render a meaningful decision on the merits of the case, see 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010), that is, to preserve the status quo pending a determination on the merits, Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009) (citation omitted). An injunction against individuals not parties to an action is strongly disfavored. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969).
B. Analysis
Plaintiff's various requests for extraordinary relief are directed, respectively, to officials at CSATF, CHCF and KVSP, while plaintiff's FAC states claims exclusively against officials at HDSP. Significantly, each of plaintiff's transfers rendered moot his requests for institution-specific relief at his prior place(s) of incarceration. Moreover, plaintiff's motions do not conform to the basic requirements noted above, as they seek orders directed to prison officials who are not parties to this action, concerning matters unrelated to plaintiff's claims. Plaintiff's requests for access to his legal materials and the law library, better quality mental health care and medical treatment, and his efforts to stop the alleged retaliation of various prison officials, required administrative exhaustion at the facility in which the alleged conduct occurred. Plaintiff must exhaust institution-specific claims through that institution's administrative grievance process before he can proceed in this court with a cognizable civil rights action in which he may then seek preliminary injunctive relief. In the absence of a sustainable underlying action, this court is without authority to grant extraordinary relief.
Notwithstanding the limitations on this court's ability to substantively review unexhausted claims and issue injunctive relief directed at non-parties, the undersigned did (as previously noted) direct the AG to inquire into the matters challenged by plaintiff when he was incarcerated at CHCF. ECF No. 28. The declarations obtained by the AG from plaintiff's treating physician and psychiatrist indicated that plaintiff was then receiving regular and appropriate mental and physical health care. ECF No. 29. In the absence of a cognizable civil rights action, this court is without authority to direct the AG to continue to track plaintiff's care. --------
Accordingly, should the district judge adopt this court's recommendation that the instant case be dismissed without prejudice, this court further recommends that each of plaintiff's requests for extraordinary relief be denied as moot.
V. Conclusion
For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
1. This action be dismissed without prejudice for failure to state a claim on which relief may be granted due to plaintiff's failure to exhaust administrative remedies before commencing this action, see 28 U.S.C. § 1915A(b)(1); 42 U.S.C. § 1997e (c)(2); and
2. Plaintiff's requests for extraordinary relief, ECF Nos. 27, 31, 35, be denied as moot.
These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is 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). DATE: July 28, 2016
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE