Opinion
Civil No. 06cv1578-WQH (BLM).
December 4, 2007
This Report and Recommendation is submitted to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b) and Local Civil Rules 72.1(c) and 72.3(f) of the United States District Court for the Southern District of California.
On August 8, 2006, Plaintiff Larry Charles Cleveland, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights suit against several defendants under 42 U.S.C. § 1983 and the Americans with Disabilities Act ( 42 U.S.C. § 12101 et seq.). Doc. No. 1. Defendants D.M. Barnes, T. Dennison, S. Hernandez, E. Hoffman, B. Larson, M. McMinn, A. Moreno, R. Perez, A. Pittman, E. Reyes, J. T. Stovall, J. Vasquez, S. Walls, D.K. Williams, A.L. Cota, and J.S. Woodford (collectively, "Defendants") filed a motion to dismiss the Complaint on May 11, 2007, on the grounds of failure to exhaust administrative remedies, failure to state a claim and qualified immunity. Doc. No. 43. Plaintiff timely opposed the motion [Doc. No. 50] and Defendants filed a reply on July 23, 2007 [Doc. No. 54].
This Court finds the issues appropriate for decision on the papers and without oral argument pursuant to Local Civil Rule 7.1.(d)(1). See Doc. Nos. 44 48. The Court has considered the Complaint, Defendants' Motion to Dismiss, Plaintiff's Opposition, Defendants' Reply and all supporting documents submitted by the parties. For the reasons set forth below, this Court RECOMMENDS that Defendants' Motion to Dismiss [Doc. No. 43] be GRANTED IN PART AND DENIED IN PART.
BACKGROUND
Plaintiff claims his constitutional rights were violated while he was incarcerated at the R.J. Donovan Correctional Facility. Doc. No. 1. Though Plaintiff's numerous complaints are set forth in greater detail below, he generally alleges that many of the Defendants repeatedly harassed him following false allegations that he engaged in sexual misconduct with a prison teacher and retaliated against him as a result of various complaints he lodged. Id. Additionally, Plaintiff highlights several incidents where officers allegedly used excessive force against him and/or acted with deliberate indifference to his serious medical needs.Id.As detailed more thoroughly below, Plaintiff filed numerous administrative complaints and appeals within the prison grievance system in response to these perceived wrongs. The instant Complaint alleges claims against twenty-four defendants. However, Plaintiff has never served Defendants Staneff, Avila, Hill, Merto, Ortiz, Graham and Camacho and the District Judge previously dismissed Defendant Schwarzenegger from this case (see Doc. No. 55).
LEGAL STANDARD
A. Motion to Dismiss for Failure to Exhaust Administrative Remedies under Federal Rule of Civil Procedure 12(b)
The Prison Litigation Reform Act (" PLRA") of 1995 provides that:
No action shall be brought with respect to prison conditions under section 1983 of this title, 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). "Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits." Porter v. Nussle, 534 U.S. 516, 524 (2002). However, the prisoner is not required to specially plead or demonstrate exhaustion in his or her complaint because failure to exhaust is an affirmative defense under the PLRA. Jones v. Bock, ___ U.S. ___, 127 S.Ct. 910, 921 (2007).
The proper vehicle for challenging a complaint based on failure to exhaust administrative remedies is an unenumerated motion under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Unlike under Rule 12(b)(6), "[i]n deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20. If the district court concludes that the prisoner has failed to exhaust his or her administrative remedies, the claim should be dismissed without prejudice. O'Guinn v. Lovelock Corr. Ctr, 502 F.3d 1056, 1059, 1063 (9th Cir. 2007); Wyatt, 315 F.3d at 1120.
Failure to exhaust may not be waived. See Woodford v. Ngo, ___ U.S. ___, 126 S.Ct 2378, 2382 (2006) ("[e]xhaustion is no longer left to the discretion of the district court"). The United States Supreme Court has stated as recently as this year that "[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones, 127 S.Ct at 918-19. A prisoner also cannot satisfy the PRLA's exhaustion requirement by "filing an untimely or otherwise procedurally defective administrative grievance or appeal." Ngo, 126 S.Ct at 2382. Nor can a prisoner who did not make any attempt to utilize the prison grievance system sidestep the exhaustion requirement by arguing that it now would be futile to attempt to exhaust within the prison system. Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001) ("we stress the point . . . that we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise"); see also Ngo, 126 S.Ct at 2391 ("if the party never pursues all available avenues of administrative review, the person will never be able to sue in federal court").
B. Motion to Dismiss For Failure to State a Claim Under Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the plaintiff's claims. See Fed.R.Civ.P. 12(b)(6). In considering a Rule 12(b)(6) motion, "we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). "However, the court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (quoting Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)). The issue is not whether the plaintiff ultimately will prevail, but whether he has properly stated a claim upon which relief could be granted. Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003).
When the plaintiff is appearing pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of doubt. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (citing Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988)). This rule of liberal construction is "particularly important" in civil rights cases. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint the court is not, however, permitted to "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.
If the court concludes that dismissal is appropriate, the court has discretion to dismiss the complaint either with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1127, 1130 (9th Cir. 2000) (en banc) (concluding that the PLRA did not strip district courts of this discretion). Because the language of section 1915(e)(2) parallels the language of Rule 12(b)(6), the Ninth Circuit has suggested that there is no reason to depart from its longstanding policy that when dismissing a complaint for failure to state a claim, "a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Id. at 1127.
DISCUSSION
Defendants contend that Counts 1-3 and 6-10 of Plaintiff's Complaint, as well as an unenumerated claim set forth on pages 63-64 of the Complaint, are unexhausted. Mem. P. A. Supp. Defs.' Mot. to Dismiss ("Defs.' Mem.") at 3-8, 12, 14-16. Defendants argue that Counts 1, 4, 5 and 10, as well as an unenumerated claim against Defendants Cota and Stovall, fail to state claims for which relief may be granted. Id. at 8-14, 19-20. Finally, Defendants seek to have what sequentially would be Claim 11, which alleges that Defendant Moreno violated Plaintiff's Eighth Amendment rights and the Americans with Disabilities Act, dismissed on the grounds that Defendant Moreno is entitled to qualified immunity. Id. at 16-19.
A. Unexhausted Claims
Unless otherwise specified, the facts are presented as set forth in the Complaint and in the light most favorable to Plaintiff. Where necessary, the Court decides disputed issues of fact. Wyatt, 315 F.3d at 1119-20.
1. Claims Pertaining to the May 17, 2004 Incident
Counts 1-3 arise from an incident that took place on May 17, 2004. Beginning in late October 2003, Plaintiff contends that Defendant Dennison conspired with Defendants Hill and Merto (as well as other officers not named as Defendants in the Complaint) and monitored him in an attempt to catch Plaintiff engaging in sexual misconduct with Ms. Dakota, a prison teacher. Compl. at 10-15. This "harassing" behavior continued through the end of 2003 and into 2004. Id. at 10-18.
On May 17, 2004, Plaintiff entered the workchange office after being released from his assigned work. Id. at 18-19. Pursuant to the standard daily procedure, Plaintiff removed all of his clothing, except his shorts, and set them on the counter in front of Defendant Dennison. Id. at 19. He then followed Dennison's instructions to take his tennis shoes and socks and walk through the metal detector while Dennison examined his clothes. Id. After walking through the metal detector, Plaintiff put his shirt and socks back on. Id. Plaintiff contends that he then repeated this procedure several more times at Dennison's request. Id. at 19-20. When he sat down to take his socks off before going through the metal detector for the fourth time, Dennison approached him and asked for his left sock. Id. at 20. Dennison said he felt something in the sock, which Plaintiff claimed was a separate elastic ankle sock wadded up inside the first sock. Id. Plaintiff tried to grab the sock from Dennison, who then threw it to another officer. Id. at 20-21. That officer left the room with the sock, which later was determined to contain marijuana (according to reports Plaintiff attached to his Complaint). Id. at 21, Ex. A.
At the same time, an alarm sounded and Dennison ordered Plaintiff and the other prisoners in the workchange area to get down on the ground. Id. Plaintiff refused due to medical impairments. Id. As a result, Dennison sprayed him with pepper spray, wrestled him to the floor, and with the help of other officers, restrained him in handcuffs and leg shackles. Id. at 22-23.
Thereafter, Defendants Larson and Reyes escorted Plaintiff to the infirmary. Id. at 28. During the walk, Plaintiff alleges that Larson tightened the handcuffs behind his back and twisted his arm upwards, causing "enormous pain." Id. at 29. When they reached the infirmary, Plaintiff refused to sign the CDC-7219 form presented to him and, therefore, received no treatment for his injuries or pepper spray exposure. Id. at 29-31.
Plaintiff attaches the referenced CDC-7219 form, also called a "Medical Report of Injury or Unusual Occurrence" form, to his Complaint. Compl., Ex. A. There is no line on the form for the prisoner's signature, but MTA Hernandez did write on an open space on the form "refused to be examined for injuries." Id.
Plaintiff raises three claims as a result of this incident. In Count 1, Plaintiff alleges that Defendants Dennison, Hill and Merto deprived Plaintiff of his Equal Protection rights and interfered with his civil rights in violation of 42 U.S.C. §§ 1985(3) and 1986. Id. at 77. Count 2 alleges that Defendant Dennison used excessive force in violation of the Eighth Amendment. Id. Finally, in Count 3, Plaintiff contends that Defendants Larson, Reyes and Hernandez were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Id. at 78.
Defendants argue that these counts must be dismissed because Plaintiff failed to properly exhaust his administrative remedies. Defs.' Mem. at 7-8. As Defendants correctly explain, the administrative appeal system for California inmates is described in Title 15 of the California Code of Regulations. See Defs.' Mem. at 7 n. 3. Under these regulations, inmates "may appeal any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." 15 C.C.R. § 3084.1(a). An inmate wishing to exhaust his or her remedies must complete four steps: (1) fill out a complaint form (generally termed a "602" form), present it to the prison official involved, and attempt informal resolution; (2) if not resolved, file for and receive a first formal level decision; (3) if relief is not granted at the first formal level, file for and receive a second formal level decision; and (4) if relief is not granted at the second level, file for and receive a third level decision from the Director of Corrections. 15 C.C.R. § 3084.5. However, of key importance is the requirement that "[a]n appellant must submit the appeal within 15 working days of the event or decision being appealed, or of receiving an unacceptable lower level appeal decision." 15 C.C.R. § 3084.6(c).
In this case, the regulations required Plaintiff to present his complaint to the prison official(s) involved within fifteen days of May 17, 2004, and then timely appeal each denial, in order to have timely and properly exhausted his claim. 15 C.C.R. § 3084.5 and 15 C.C.R. § 3084.6(c); Jones, 127 S.Ct at 918-19. As previously noted, an inmate cannot satisfy the PRLA's exhaustion requirement by "filing an untimely or otherwise procedurally defective administrative grievance or appeal." Ngo, 126 S.Ct at 2382. Here, J.T. Stovall, the Appeals Coordinator at the prison, submitted a sworn declaration stating that:
The California Attorney General's Office requested this Office research its records to ascertain if Plaintiff Cleveland exhausted any inmate appeals at the institutional level (up to the second formal level of appeal) as to any allegations of excessive force, denial of equal protection or deliberate indifference to Plaintiff's health or safety arising from an incident on May 17, 2004. The appeals log and copies of appeals maintained by the Appeals Office, which are kept in the ordinary course of business at or near the time this Office receives an inmate appeal, show that Plaintiff did not properly file or exhaust any such appeal at the institutional level.
Decl. of J.T. Stovall Supp. Defs.' Mot. to Dismiss ("Stovall Decl.") ¶ 7. The attached log does not show that any appeals related to staff conduct were received from Plaintiff within fifteen days of May 17, 2004. Id.
Plaintiff argues that he submitted appeals in May, July, August, October and November of 2004 "raising the matters state[d] in plaintiff's complaint" and prison officials never responded to or returned these appeals. Pl.'s Opp'n at 9-10. But the prison log, which reflects many complaints by Plaintiff, shows no evidence that Plaintiff filed the alleged appeals. Stovall Decl., Ex. A. Moreover, Plaintiff does not attach copies of any appeals demonstrating that he properly submitted them within the fifteen day window and it appears that only the alleged May 2004 appeal would have fallen within the required time frame (presuming it pertained to the May 17, 2004 incident, which Plaintiff does not specifically claim). While Plaintiff did submit an appeal on June 1, 2004 (within the applicable time frame), it pertains to Plaintiff's claim that he was denied access to legal materials and the law library, not the May 17, 2004 incident. Compl., Ex. B. Accordingly, the Court does not find this argument sufficient to overcome Defendants' showing that Plaintiff did not file a timely appeal regarding this incident.
Moreover, Plaintiff admits that he did not submit any appeal of the May 17, 2004 incident until April 11, 2005. Compl., Ex. A; Pl.'s Opp'n at 10. "A prisoner's concession to nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies." Wyatt, 315 F.3d at 1120. While Plaintiff submitted his April 11, 2005 grievance on a 602 form, he added language to the form specifying that it was a "Citizen's Complaint" and that he was filing it within twelve months of the events giving rise to the complaint in accordance with 15 C.C.R. § 3391(b). Compl., Ex. A. As such, Plaintiff appears to argue that his administrative complaint was timely under 15 C.C.R. § 3391(b), regardless of whether or not he complied with the fifteen-day requirement.
Plaintiff's reliance on 15 C.C.R. § 3391(b) as affording him more than the standard fifteen days in which to lodge a complaint is misplaced. 15 C.C.R. § 3391(b) expressly is limited to complaint's lodged by non-inmates , stating:
An allegation by a non-inmate of misconduct by a departmental peace officer as defined in section 3291(b), is a citizen's complaint pursuant to Penal Code section 832.5. Citizen's complaints alleging misconduct of a departmental peace officer shall be filed within twelve months of the alleged misconduct.
15 C.C.R. § 3391(b). Plaintiff was incarcerated at the time of the incident and, therefore, was required to submit his grievance within fifteen days of May 17, 2004.
The Court finds that Plaintiff's concession that he did not file an appeal of the May 17, 2004 incident until April 11, 2005, coupled with Stovall's declaration and the log records showing the absence of any related appeals during the fifteen days following May 17, 2004, demonstrate that Plaintiff's claims regarding the May 17, 2004 incident are unexhausted. See Bovarie v. Giurbino, 421 F. Supp. 2d 1309, 1314-1315 (S.D. Cal. 2006) (relying on Wyatt and holding that declaration of appeals officer that prisoner failed to exhaust corroborated prisoner's concession to nonexhaustion and evidence together justified dismissal). Accordingly, the Court finds that Counts 1-3 against Defendants Dennison, Larson, Reyes and Hernandez are unexhausted and RECOMMENDS that they be DISMISSED. 2. Claims Pertaining to the August 6, 2004 Incident
Because the Court finds that Count 1 is unexhausted and should be dismissed on that basis, the Court finds it unnecessary to address Defendants' additional argument that Count 1 fails to state a claim.
Plaintiff claims that on August 6, 2004, officers came to his cell and presented him with a subpoena ordering him to appear in Court that day on charges related to the May 17, 2004 incident. Compl. at 48. Plaintiff objected because he had not received prior notification of the court appearance, as required by the regulations. Id. at 49. In response, Defendant Avila called in additional officers to extract Plaintiff from his cell. Id. During this extraction, Plaintiff claims he was subjected to verbal threats and abuse, which Defendants Avila and Perez observed but failed to discourage. Id. at 49-50. Once he left for his Court appearance, Plaintiff contends that Defendants Staneff and Graham, in retaliation for asserting his right to prior notification of court appearances, searched his cell and read his confidential legal papers. Id. at 50-51. Plaintiff returned to find his confidential legal papers and court documents in disarray. Id. at 51.
Plaintiff appears to raise two claims related to this incident. In Count 6, Plaintiff asserts that Defendants Staneff and Graham violated his constitutional rights when they retaliated against him for asserting his First Amendment rights. Id. at 78-79. In Count 8, Plaintiff claims that Defendants Avila and Perez violated his constitutional rights when they acted with deliberate indifference to the substantial risk that he would be harmed when the other officers retaliated against him. Id. at 79.
Defendants contend that these claims must be dismissed because Plaintiff did not file a timely inmate appeal or receive final resolution of his claims. Defs.' Mem. at 12. Defendants point to a grievance described as log no. 05-490, which Plaintiff attached to his Complaint (see Compl., Ex. E). Id. This grievance described the August 6, 2004 acts of retaliation by Defendants Staneff and Graham, but Plaintiff dated it January 23, 2005. Compl., Ex. E. According to a declaration filed by N. Grannis, the Chief of the Inmate Appeals Branch:
Defendants cite only to Count 8, but argues that claims related to this incident must be dismissed as unexhausted. Defs.' Mem. at 12. Count 6 also pertains to this incident, but alleges claims against Defendants Staneff and Graham only — neither of whom have been served. Because the Court finds that Count 6 also pertains to this incident, the Court will address these counts jointly. The unserved Defendants will be addressed further in Section C of this Order.
The screenout records query [attached to his declaration] shows that the inmate appeal, log no. RJD 05-490, that inmate Cleveland attempted to file concerning a complaint against staff arising from an August 6, 2004 incident was screen out by my office because it did not comply with the inmate appeals process. This appeal was subsequently canceled and therefore remains unexhausted.
Decl. of N. Grannis Supp. Defs.' Mot. to Dismiss ¶ 8.
In response, Plaintiff argues that his retaliation claims related to his refusal to come out of his cell for a court appearance were exhausted through the state courts (he cites case numbers from the Superior Court, Court of Appeal, and California Supreme Court). Pl.'s Opp'n at 15.
The Court agrees that Claims 6 and 8 are unexhausted because Plaintiff did not appeal any acts related to the August 6, 2004 incident until well beyond the fifteen day time period for doing so. See 15 C.C.R. § 3084.6(c). Once again, the Court cannot entertain unexhausted claims. Jones, 127 S.Ct at 918-19; Ngo, 126 S.Ct at 2382. While Grannis' declaration in and of itself is insufficient to meet Defendants' affirmative burden because it does not explain how the appeal failed to comply or whether the prison complied with its obligation to explain to Plaintiff why his appeal was unacceptable and how to correct it (see 15 C.C.R. § 3084.3(d)), Plaintiff once again has admitted that he did not submit an appeal as to this incident until months after it occurred (see Compl., Ex. E). As previously noted, a court may dismiss if the prisoner has conceded failure to exhaust. Wyatt, 315 F.3d at 1120. Furthermore, Plaintiff's concession that he did not file his appeal until January 23, 2005, strongly suggests that his complaint was "cancelled" because it was untimely. Accordingly, the Court finds that Plaintiff's concession, together with Grannis' declaration and the attached log records, establishes that Plaintiff's claims are unexhausted.
On a final note, to the extent Plaintiff argues that he exhausted the claims in state court, this argument fails because the PLRA requires administrative exhaustion. Congress specifically has stated that the reason for this is to allow the institution an opportunity to correct errors internally. 42 U.S.C. § 1997e(a); Ngo, 126 S.Ct at 2385 ("[b]ecause exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims"). Claims filed outside of the institution, therefore, are irrelevant for PLRA exhaustion purposes. See O'Guinn, 502 F.3d at 1062 (rejecting prisoner's argument that he exhausted his claim by filing a complaint with the Department of Justice because "the Supreme Court has made clear that the PLRA requires a prisoner to exhaust the prison's internal grievance process").
In sum, this Court RECOMMENDS that Claims 6 and 8 be DISMISSED as unexhausted. 3. Claims Pertaining to the October 12, 2004 Incident
To the extent Plaintiff argues that he exhausted these claims by way of an appeal contesting the district attorney's failure to notify him within ten days that the May 17, 2004 incident had been referred to them for prosecution (this prosecution being the impetus for the August 6, 2004 court appearance), Plaintiff's claim also fails. In the appeals Plaintiff attaches to his Complaint, he lists the date of this incident as June 25, 2004. Compl., Ex. D. However, he did not submit a related grievance until a month later on July 25, 2004. Id. Additionally, the appeal eventually was cancelled at the third level because the prison does not have jurisdiction over the district attorney's actions. Id. Because this appeal was untimely and procedurally defective, it does not provide a proper basis for finding exhaustion. Ngo, 126 S. Ct. at 2382.
Plaintiff submitted a complaint to Defendant Barnes regarding the August 6, 2004 incident requesting that an investigation be conducted. Compl. at 51-52. He alleges that, as a result of having lodged a complaint, Defendant Staneff had a "vendetta" against him and sought to retaliate against him. Id. at 52. On October 12, 2004, Staneff was serving the evening meal and placed a meal on the tray slot for Plaintiff's cell. Id. at 53. Plaintiff asked if Defendant Staneff could leave the tray on the slot because he was busy doing legal writing at his desk. Id. Staneff said no and removed the tray. Id. In response, Plaintiff leaped up and stuck his left arm through the slot in an effort to retrieve the tray.Id. Staneff allegedly then began kicking the tray slot. Id. Defendant Williams, who was nearby, joined Defendant Staneff in "kicking, hitting, pushing, punching, and applying their body weight against the tray slot door" in an effort to force Plaintiff's arm back into his cell. Id. at 53-54. When Plaintiff finally attempted to jerk his arm back through the slot, he claims that Staneff sprayed him in the eyes with pepper spray.Id. at 54. Plaintiff submits that Defendant Pittman observed all of these proceedings and failed to intervene. Id. at 57.
Following the incident, Plaintiff was not taken to the infirmary, but Defendant Camacho examined him outside his cell.Id. at 55-56. Camacho allegedly did not treat Plaintiff's eyes and only treated his left arm by way of suggesting that Plaintiff wash it with soap and water. Id. at 56.
Plaintiff raises four claims pertaining to the October 12, 2004 incident. In Count 7, Plaintiff alleges that Defendants Staneff and Williams violated his First and Eighth Amendment rights by using excessive force against him in retaliation for Plaintiff's filing of a complaint against Defendant Staneff. Id. at 79. In Count 8, Plaintiff alleges that Defendants Avila, Perez and Pittman acted with deliberate indifference to Plaintiff's serious risk of harm in violation of his Eighth Amendment rights. Id. Similarly, Plaintiff claims in Count 9 that Defendants Barnes, Avila, Perez and Pittman acted with deliberate indifference by breaching their respective duties to take protective measures to deter Defendant Staneff's misconduct — again, in violation of Plaintiff's Eighth Amendment rights. Id. at 80. Finally, in Count 10, Plaintiff avers that Defendants Barnes, Avila and Woodford violated his Eighth Amendment rights in that they were deliberately indifferent to a pattern and practice of officers using excessive force in the prisons — a practice of which these individuals were put on notice. Id.
Defendants argue that Counts 7-10 must be dismissed due to Plaintiff's failure to exhaust his administrative remedies. Defs.' Mem. at 14-15. While Defendants acknowledge that Plaintiff did file an appeal relating to the October 12, 2004 incident (log no. 05-328), Defendants argue that this appeal is irrelevant because it only challenged on due process grounds the disciplinary proceedings against Plaintiff with respect to a rules violation he received for the incident and sought dismissal of the rules violation report; it did not address Plaintiff's excessive force/retaliation claims. Id. at 14. Defendants submit that only the "citizen's complaint," which Plaintiff belatedly filed on February 16, 2005, addressed Plaintiff's excessive force allegations. Id. at 14-15. The Complaint confirms that the appeals coordinator screened the Citizen's Complaint out because it was filed late. Id. at 15 (citing Compl. at 62). As for Plaintiff's deliberate indifference claims, Defendants assert that Plaintiff procedurally defaulted these claims and argues they should be dismissed under Woodford v. Ngo. Id. at 15.
In his opposition, Plaintiff denies that he failed to exhaust these claims, but provides no elaboration or evidence to support his argument. Pl.'s Opp'n at 17.
Defendants are correct that Plaintiff also failed to properly exhaust this claim. The Court's review of Plaintiff's appeal in log no. 05-328 reveals that it does, in fact, only raise a due process claim challenging the discipline Plaintiff received following the October 12, 2004 incident, not claims of excessive force, retaliation, or deliberate indifference. See Compl., Ex. F. Thus, it did not sufficiently alert the officers to the nature of the claims so as to provide prison administrators with a fair opportunity to address the problem. Jones, 127 S.Ct. at 915. Regardless, Plaintiff signed that grievance and submitted it at the informal level on February 15, 2005. Id. This is well past the fifteen-day window for doing so. See 15 C.C.R. § 3084.6(c).
The same is true of Plaintiff's February 16, 2005 "Citizen's Complaint." See Compl., Ex. F. In this complaint, Plaintiff did challenge the actions of Staneff, Walls and Hoffman as constituting retaliatory excessive force and Plaintiff also asserted claims against Barnes, Avila, Pittman and Perez for their deliberate indifference in violation of the Eighth Amendment. Id. But again, he signed the grievance four months after the October 12, 2004 incident occurred, which makes his complaint untimely. See 15 C.C.R. § 3084.6(c). Plaintiff admits as much by explaining in his Complaint that the Appeals Coordinator returned his Citizen's Complaint with a screening form indicating that it was being returned as untimely. Compl. at 62. Having conceded not only that he filed his appeal late, but that he received a notice from the appeals coordinator explaining that it was not filed because it was after the fifteen day window, Plaintiff now offers no evidence to rebut Defendants' demonstration that these claims were not properly exhausted.
Because exhaustion is a mandatory requirement, Jones, 127 S.Ct at 918-19, which this Court is not authorized to waive, Ngo, 126 S.Ct at 2382, and because Defendants have demonstrated nonexhaustion and Plaintiff admits that he failed to exhaust Counts 7-10, Wyatt, 315 F.3d at 1120, this Court RECOMMENDS that Counts 7-10 be DISMISSED .
Because the Court finds that Count 10 is unexhausted and should be dismissed on that basis, the Court finds it unnecessary to address Defendants' additional argument that Count 10 fails to state a claim.
4. Claims Pertaining to the November 12, 2004 Incident
While these allegations do not appear to correspond to an enumerated claim, Plaintiff alleges on pages 62-64 of his Complaint that Defendants Staneff, Hoffman, Walls, Vasquez, and Ortiz retaliated against him on November 12, 2004, because of complaints Plaintiff had made against Staneff. Compl. at 63-64. Specifically, Plaintiff alleges that while Hoffman escorted Plaintiff to the shower, Walls entered his cell, read his confidential legal papers, and confiscated his personal items.Id. Thereafter, Plaintiff claims Defendants Staneff, Walls, Hoffman, Vasquez and Ortiz conspired to discourage him from exercising his First Amendment rights by subjecting him to frequent cell searches, confiscating and destroying his property, using excessive force, and issuing false rules violation reports against him. Id. at 64.
The prison records attached to the Complaint suggest that the correctional officer confiscated a "hard core" pornography magazine that was hidden within Plaintiff's legal papers and "excess fruit" (defined by the officer as more than a day's ration). Compl., Ex. F.
Defendants argue that these unenumerated claims must be dismissed because Plaintiff failed to exhaust them properly. Defs.' Mem. at 16. While Plaintiff references exhibit I of his Complaint to demonstrate exhaustion, Defendants contend that the attached documentation shows only that Plaintiff's administrative grievance of these issues was untimely. Id. Defendant asserts that Plaintiff waited until August 27, 2005, to administratively grieve these issues and the documentation at exhibit I shows that his inmate appeal was rejected as untimely. Id.
In his opposition, Plaintiff argues that he did exhaust this claim, as demonstrated by the documentation he attached to his Complaint at exhibit F. Pl.'s Opp'n at 17.
The August 27, 2005 "Citizen's Complaint" at Complaint Exhibit I challenges ongoing retaliatory conduct by Defendant Vasquez that allegedly occurred between November 2004 and April 2005. Compl., Ex. I. The record at Complaint Exhibit F contains a February 16, 2005 "Citizen's Complaint," which addresses Defendants Hoffman, Staneff and Wall's conduct on November 12, 2004, and again attempts to take advantage of the one year limitations period for filing such a complaint. Compl., Ex. F. As this Court has already explained, the regulation governing such "Citizen's Complaints," 15 C.C.R. § 3391(b), does not cover complaints by inmates. The Appeals Coordinator acknowledged this fact in returning the August 27, 2005 complaint to Plaintiff because it was submitted outside of the fifteen day window for submitting such grievances. Compl., Ex. I. Accordingly, Plaintiff's Citizen's Complaints dated February 16, 2005 (over three months after the November 12, 2004 incident) and August 27, 2005 (over nine months after the November 12, 2004 incident and four months after the April 2005 harassment) are untimely. See Compl., Exs. F I. Because Plaintiff himself admits that he attempted exhaustion by way of the grievance at Complaint Exhibit F, which on its face is untimely, the Court finds that Plaintiff's claims must be dismissed as unexhausted.Wyatt, 315 F.3d at 1120. Accordingly, this Court RECOMMENDS that the unenumerated claims against Defendants Staneff, Walls, Hoffman, Vasquez and Ortiz alleged on pages 63-64 of the Complaint be DISMISSED.
B. Claims that Must be Dismissed Pursuant to Rule 12(b)(6)
Because these claims come before the Court on a motion to dismiss for failure to state a claim and because Plaintiff is appearing pro se, the Court construes the Complaint, and all reasonable inferences drawn therefore, liberally and in the light most favorable to Plaintiff. Thompson, 295 F.3d at 895.
1. Defendants' Request For Judicial Notice
Before addressing the merits of Defendants' Rule 12(b)(6) motion, this Court will briefly address Defendants' request for judicial notice of federal court records. Doc. No. 43-2. Federal Rule of Evidence 201 permits a court to take judicial notice of two types of facts: (1) those that are generally known within the court's territorial jurisdiction, and (2) those that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b). Under Ninth Circuit precedent, a court may not take judicial notice of factual findings from other cases, see Wyatt, 315 F.3d at 1114 n. 5, nor may it take judicial notice of any matter that is subject to reasonable dispute, see Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
Defendants ask the Court to take judicial notice of the dockets in Case Nos. 03cv2930 and 04cv0903 (both from the Central District of California), three orders and one civil minutes report from those cases, the dockets in Case Nos. 03-72207 and 03-56455 (both from the Ninth Circuit), and one order from the Ninth Circuit. Doc. No. 43-2. The Ninth Circuit has held that a court may take judicial notice of "matters of public record," and it may do so without converting a Rule 12(b)(6) motion to dismiss into a summary judgment motion. Lee, 250 F.3d at 689. However, "when a court takes judicial notice of another court's opinion, it may do so 'not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity.'" Id. at 690 (quotingS. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426-27 (3rd Cir. 1999)). In this case, the accuracy of the public records cannot reasonably be questioned and the copies provided by Defendants contain all appropriate file stamps, Pacer or CM/ECF stamps, and other indicia of reliability. Additionally, the records are provided only for purposes of demonstrating dates on which pleadings and orders were filed or how the courts ultimately ruled on procedural issues. Defendants do not seek to rely on factual findings by these other courts. Therefore, because these records are relevant to the resolution of Defendants' 12(b)(6) motion and because they fall within the range of documents allowed under Federal Rule of Evidence 201(b), this Court finds it appropriate to take judicial notice of these exhibits.
For these reasons, this Court GRANTS Defendants' request for judicial notice. 2. Count 4
In Count 4, Plaintiff alleges that Defendant Barnes violated his constitutional right of access to the Courts. Compl. at 78. Plaintiff explains that he had litigation pending in the Central District of California (Case No. 04cv0903-DSF(RC)) and the Ninth Circuit (Case No. 03-72207). Id. at 37. On June 1, 2004, he submitted a 602 appeal requesting that he be issued all of his legal materials while he was being held in administrative segregation. Id. In response, Plaintiff alleges that Defendant Barnes sent him a letter dated September 17, 2004, stating that because of the amount of legal materials involved, Plaintiff would only be allowed one box of legal materials at a time. Id. at 39. Plaintiff claims the limitation to one box at a time caused him to miss the deadline for filing a request for a Certificate of Appealability in the Ninth Circuit in Case No. 03-72207 because he was using his box of legal research for Case No. 04cv0903-DSF(RC) and, therefore, could not swap it out with the box for Case No. 03-72207. Id. at 37-38; see also Pl.'s Opp'n at 14 (referring the Court back to the allegations in his Complaint). He seeks relief in the form of equitable tolling in the Ninth Circuit case. Id.
Defendants respond that this claim is frivolous and must be dismissed. Defs.' Mem. at 10-11. Defendants request that the Court take judicial notice of the dockets from Plaintiff's various federal cases in order to allow Defendants to demonstrate why Plaintiff's claim is frivolous. Relying on these dockets and Plaintiff's own exhibit, Defendants submit that Plaintiff's certificate of appealability was ruled upon long before Plaintiff even was placed in administrative segregation and subjected to the "one box at a time" rule. Id. Additionally, Defendants argue that Plaintiff's claim that he was working on Case No. 04cv0903-DSF(RC) while he was pursuing his appeal in Case No. 03-72207 is frivolous because he did not, in fact even initiate the 04cv0903-DSF(RC) case until six months after the Ninth Circuit denied the certificate of appealability. Id. at 10-11. Finally, even if all of the above were not true, Defendants contend that Plaintiff's claim is frivolous because the appeal he sought to file related to his third successive petition. Id. Accordingly, Defendants argue that Plaintiff cannot show that Defendant Barnes impeded a nonfrivolous attack on his criminal conviction. Id.
As previously noted, the Court grants Defendants' request.
Prisoners have a constitutional right of access to the Courts guaranteed by the Fourteenth Amendment. Bounds v. Smith, 430 U.S. 817, 821 (1977). "[A]ccess to the courts means the opportunity to prepare, serve and file whatever pleadings or other documents are necessary or appropriate in order to commence or prosecute court proceedings affecting one's personal liberty, or to assert and sustain a defense therein, and to send and receive communications to and from judges, courts and lawyers concerning such matters."Lewis v. Casey, 518 U.S. 343, 384 (1996) (quoting Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir. 1961)).
This right is limited to cases where the inmate is able to demonstrate an "actual injury" to his ability to litigate a case.Lewis, 518 U.S. at 349-53. The Ninth Circuit has defined "actual injury" as a "specific instance in which an inmate was actually denied access to the courts." Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1994) (quoting Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989)). However, actual injury exists only if "a nonfrivolous legal claim has been frustrated or was being impeded." Lewis, 518 U.S. at 353. Where a prisoner asserts a backward-looking claim seeking a remedy for a lost opportunity to present a legal claim, he must show: "1) the loss of a 'nonfrivolous' or 'arguable' underlying claim; 2) the official acts frustrating the litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit." Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (citing Christopher v. Harbury, 536 U.S. 403, 413-14 (2002)).
In this case, Defendants are correct that Plaintiff fails to demonstrate an actual injury because his claim is frivolous. See Lewis, 518 U.S. at 353. In Case No. 03-72207, Plaintiff filed an application for leave to file a second or successive petition. Request for Judicial Notice ("RJN"), Ex. 4. On July 24, 2003, the Ninth Circuit construed this filing as a notice of appeal and transferred it back to the Central District of California with instructions that it be treated as a motion for a certificate of appealability. Id. Upon receiving the motion from the Ninth Circuit, the Central District denied Plaintiff's motion for a certificate of appealability (Case No. 03cv2930-CBM (RC)). Id., Ex. 3. The Central District then forwarded the record of Plaintiff's case back to the Ninth Circuit. Id., Ex. 1. On November 18, 2003, the Ninth Circuit also denied Plaintiff's request for a certificate of appealability (Case No. 03-56455).Id., Ex. 6. Thus, Defendant Barnes' alleged conduct between June and September 2004 did not deprive Plaintiff of an opportunity to file a certificate of appealability in Case No. 03-72207 — he already had filed one and received a decision from both the district court and the Ninth Circuit. C.f. Christopher, 536 U.S. at 414 (prisoner must demonstrate "the loss of an opportunity to seek some particular order of relief" to state a claim of denial of access to courts). Nor were the certificates denied based on untimeliness, which could be attributed to prison officials' delay. Both courts denied the certificates because the underlying petition was successive. RJN, Exs. 3 6.
Plaintiff's claim that the "one box at a time" limitation impaired his ability to file also does not stand up to scrutiny. As already discussed, Plaintiff had received a decision from the Ninth Circuit on his motion for a certificate of appealability by November 18, 2003. He did not even file Case No. 04cv0903-DSF(RC) until February 10, 2004. See RJN, Ex. 7. Thus, he could not have been working on Case No. 04cv0903-DSF(RC) at the time his motion for a certificate of appealability was due. Moreover, Plaintiff was not confined to administrative segregation and subjected to Defendant Barnes' "one box at a time" rule until May 17, 2004.See Compl., Ex. A (Administrative Segregation Unit Placement Notice). As such, the Court finds that Plaintiff has failed to allege an actual injury. Lewis, 518 U.S. at 353.
Furthermore, Plaintiff does not seek relief that is within the purview of this Court to grant. The issue is not whether the plaintiff will ultimately prevail, but whether he has properly stated a claim upon which relief could be granted. Jackson, 353 F.3d at 755. Plaintiff asks that as a result of the alleged denial of access to the courts, this Court afford him equitable tolling of the statute of limitations in his habeas case. This Court has no authority to mandate that equitable relief be provided in another case before a different judge. Therefore, Plaintiff's claim fails to state a claim for which relief could be granted. See Fed.R.Civ.P. 12(b)(6); Jackson, 353 F.3d at 755; see also Phillips, 477 F.3d at 1076 (prisoner must seek a remedy that may be awarded). For these reasons, the Court RECOMMENDS that Count 4 be DISMISSED. 3. Count 5
It also does not appear that relief in the form of equitable tolling would resolve Plaintiff's successive petition problem.
In Count 5, Plaintiff alleges that while still housed in administrative segregation, Defendant McMinn denied Plaintiff legal copies, which resulted in a denial of meaningful access to the courts. Compl. at 42. Specifically, he claims that on July 12, 2004, Defendant McMinn denied his request for copies, instead suggesting that Plaintiff copy his motion by hand. Id. at 43. Plaintiff subsequently filed his motion in Case No. 04cv0903-DSF(RC) without serving opposing counsel. Id. The Central District returned the motion to Plaintiff unfiled due to Plaintiff's failure to serve opposing counsel. Id. Plaintiff gave the order and motion to Defendant McMinn and asked for copies so that he could mail the motion out by July 22, 2007 (in a second attempt to have it filed). Id. at 43-44. According to Plaintiff, Defendant McMinn never returned the motion or copies and refused to take additional papers to the library for copying because he claimed other inmates were ahead of Plaintiff in line. Id. at 44-46. Plaintiff states that the motion ultimately was denied and that this denial is attributable to Defendant McMinn's actions in denying him access to the courts. Id. at 47.
Defendants argue that Plaintiff cannot demonstrate that Defendant McMinn impeded his ability to litigate Case No. 04cv0903-DSF(RC) for two reasons. Id. at 11-12. First, the docket from 04cv0903-DSF(RC) reflects that Plaintiff did succeed in filing his motion — which was entitled "Notice of Motion and Motion for an Order to Demand All Legal Material and Legal Books Returned to Inmate or Order to Show Cause Why" — and it was ruled on immediately. Id. at 11. Specifically, the district court denied the motion, but advised the warden and corrections officers that Plaintiff was representing himself in a pending proceeding and required access to writing materials and the prison law library, as permitted by prison rules. Id. at 12; RJN, Ex. 9. Second, Defendants argue that Plaintiff's claim against Defendant McMinn fails because Plaintiff's problems in obtaining copies were the result of his own failure to follow proper procedures. Id. Defendants cite to Chief Deputy Warden Oliveros' response to Plaintiff's grievance concerning the copies, which states:
[I]t has been determined that you have not been following proper procedures in your requests. Proper procedure dictates that you submit requests for legal copies through the institutional mail on Inmate Request forms, during pre-scheduled law library visits, or submitted on an Inmate Request when the assigned Legal Officer is delivering other documentation to your cell. Written request for legal copies take a minimum of three business days to process.
Compl., Ex. C. In light of these issues, Defendants argue that Plaintiff's allegations fail to state a claim because Plaintiff's problems were attributable to his own actions, not those of Defendant McMinn. Defs.' Mem. at 12.
In his opposition, Plaintiff reiterates his allegations and refers back to his Complaint. Pl.'s Opp'n at 14.
As an initial matter, Plaintiff fails to demonstrate that his alleged inability to access the courts was due to Defendant McMinn's improper conduct instead of his own. Plaintiff states that he first requested copies from Defendant McMinn on July 12, 2004. Compl. at 43. The docket from Case No. 04cv0903-DSF(RC) reflects that the court received his motion two days later on July 14, 2004. RJN, Ex. 7. Given that under prison procedures, "[w]ritten request for legal copies take a minimum of three business days to process," (Compl., Ex. C), Plaintiff's own pleadings demonstrate that his inability to obtain copies before filing was due to his failure to timely request them and wait three or more business days for the copies to be returned. This is reflected in his subsequent complaint that Defendant McMinn did not return copies on July 22, 2004, of document that Plaintiff had only provided to him the day before. Compl. at 43-44. A self-inflicted injury attributable to Plaintiff's own impatience and disregard for prison procedures cannot constitute the "actual injury" necessary to state a claim for denial of access to the courts. See Phillips, 477 F.3d at 1076 (denial of access to courts claim requires showing of what official acts frustrated the litigation).
Nor does the fact that Plaintiff's original motion was rejected by the Central District on discrepancy alone support a cognizable denial of access claim. As previously noted, the right of access to the courts is limited to cases where the inmate is able to demonstrate an "actual injury" to his ability to litigate a case, Lewis, 518 U.S. at 349-53, as shown via a "specific instance in which an inmate was actually denied access to the courts,"Vandelft, 31 F.3d at 796. While Plaintiff's motion was rejected for filing on July 14, 2004, it was accepted two weeks later on July 28, 2004. RJN, Ex. 7. One day later, the district court ruled on the motion. Id., Exs. 7 9. While the court denied the motion, it did expressly advise the Warden and corrections officers that Plaintiff needed access to written materials and the law library. Id., Ex. 9. Thus, not only did Plaintiff receive the sought after access to the court (the filing of his motion), he received some relief from the court (the warning to the prison officials). As such, he fails to allege a specific instance where he actually was denied access to the court. Vandelft, 31 F.3d at 796; Phillips, 477 F.3d at 1076 (a plaintiff must show "a lost opportunity to present a legal claim").
For the foregoing reasons, this Court RECOMMENDS that Count 5 by DISMISSED. 4. Claims Against Defendants Cota and Stovall
Plaintiff alleges in a general manner on pages 72-74 of his Complaint that Defendants Cota and Stovall, both of whom apparently work(ed) in the Appeals Coordinator's Office, prevented him from exhausting several of his grievances. Compl. at 72-74. While no specific count is attached to these claims, Plaintiff also lists in the declaration accompanying his Complaint that Defendants Cota and Stovall "refused to process valid appeals, and rejected Plaintiff's appeals as untimely." Cleveland Decl. ¶ 23.
Defendants argue that any claims against Cota and Stovall must be dismissed for failure to state a claim. Defs.' Mem. at 19. More precisely, Defendants submit that a prison official's involvement and actions in reviewing and/or investigating a prisoner's administrative appeal cannot serve as the basis for liability in a § 1983 action. Id. (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003) and Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)).
Plaintiff opposes Defendants' motion, arguing that he was denied access to the courts when the Appeals Coordinator failed to process his Citizen's Complaints and 602 appeals. Pl.'s Opp'n at 21.
"To state a claim under section 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States. . . ." West v. Atkins, 487 U.S. 42, 48 (1988). However, "inmates lack a separate constitutional entitlement to a specific prison grievance procedure." Ramirez, 334 F.3d at 860. As the Eighth Circuit explained under facts similar to those presented here:
"[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment." Thus, defendants' failure to process any of Buckley's grievances, without more, is not actionable under section 1983. (internal citation omitted).Buckley, 997 F.2d at 495.
In this case, Plaintiff's claims against Cota and Stovall stem from their alleged failure to process his complaints and appeals through the prison's grievance system. Because Plaintiff does not have a constitutional right to a prison grievance system,Ramirez, 334 F.3d at 860, or certain treatment within an established one, Buckley, 997 F.2d at 495, Plaintiff fails to state a claim under section 1983. West, 487 U.S. at 48.
Moreover, even if the Court instead views Plaintiff's claim through the denial of access to the courts lens, which Plaintiff presents in his opposition, Plaintiff still fails to state a claim. As discussed supra, an inmate's constitution right of access to the courts, Bounds, 430 U.S. at 821, is limited to cases where the inmate is able to demonstrate an "actual injury" to his ability to litigate a nonfrivolous claim, Lewis, 518 U.S. at 349-53. In his Complaint, Plaintiff summarizes the appeals that Cota and Stovall allegedly failed to process properly. Among these, Plaintiff lists his (1) April 25, 2005 Citizen's Complaint regarding the May 17, 2004 incident, (2) his February 16, 2005 and August 27, 2005 Citizen's Complaints regarding the November 12, 2004 incident, and (3) a director's level complaint regarding the August 6, 2004 incident involving Defendants Graham and Staneff. Compl. at 72-74. This Court already has determined that all of these complaints are unexhausted because Plaintiff failed to file them within the fifteen day time period (as demonstrated by his own handwritten dates on the complaints and admissions in his pleadings). Thus, any claim based on Cota and Stovall's failures to process these untimely claims after Plaintiff submitted them late would be frivolous. Lewis, 518 U.S. at 353.
Plaintiff also acknowledges in his Complaint that these complaints were returned to him with screening forms indicating that they were untimely. Compl. at 72-74.
The only other specific complaint Plaintiff lists is a "602/Citizen's Complaint" against Defendant Ortiz that he claims to have submitted on July 29, 2005 and attached at Complaint Exhibit I. Id. at 74. Upon reviewing the "Citizen's Complaint" at Exhibit I, this Court learned that it pertained to Ortiz's retaliatory actions on June 7, 2005. Compl., Ex. I. As set forth above, Plaintiff is not eligible to utilize Citizen's Complaints and this allegation is untimely under the prison grievance system because Plaintiff submitted it more than fifteen days after the incident. Thus, Plaintiff also fails to state a nonfrivolous claim as to this complaint.
And, of course, the Court once again notes that Defendant Ortiz was never served.
For the reasons stated above, the Court finds that Plaintiff's claims against Cota and Stovall fail to state claims for which relief could be granted. See Fed.R.Civ.P. 12(b)(6); Jackson, 353 F.3d at 755. For this reason, the Court RECOMMENDS that these claims be DISMISSED.
C. Claims Against Defendants Who Have Not Been Served
As previously noted, Plaintiff has never served Defendants Staneff, Avila, Hill, Merto, Ortiz, Graham and Camacho. The Court recommends that the District Judge sua sponte dismiss the claims against these Defendants. Rule 4(m) of the Federal Rules of Civil Procedure provides that "[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice." Fed.R.Civ.P. 4(m). Here, more than 120 days have passed since the summons was issued and USM 285 forms for each unserved Defendant were returned unexecuted. See Doc. No. 26 (reflecting April 23, 2007 as being the most recent occurrence of a summons being returned unexecuted). Because Defendants highlighted in their motion to dismiss which Defendants have not been served and because Defendants seek dismissal of the Complaint, Plaintiff has been put on notice that the case may be dismissed against all Defendants. Moreover, Plaintiff has filed nothing since April 2007 that suggests he has attempted further service of these Defendants. Accordingly, to the extent that any claims remain against the unserved Defendants, this Court RECOMMENDS that the District Judge DISMISS Defendants Staneff, Avila, Hill, Merto, Ortiz, Graham and Camacho pursuant to Rule 4(m).
D. Qualified Immunity
In what sequentially would be Count 11, Plaintiff claims that Defendants Avila and Moreno violated his Eighth Amendment rights and the Americans with Disabilities Act ("ADA") by refusing to allow him to wear his medically-prescribed orthopedic shoes while in administrative segregation. Compl. at 65-71, 80. Without these shoes, Plaintiff suffers pain when walking and, therefore, was unable to exercise outdoors during his term in administrative segregation. Id.
Defendants argue that Defendant Moreno is entitled to qualified immunity on this count because Moreno simply was enforcing prison rules, which prohibit inmates in administrative segregation from wearing hard shoes with steel components. Defs.' Mem. at 16. More precisely, Defendants assert that Moreno's actions were in conformity with the Armstrong remedial plan, Section I.22, which provides: "[h]ealth care appliances, as defined in CCR, Title 15, Section 3358, shall be taken away from an inmate in ASU, SHU or other disciplinary detention units only to ensure the safety of persons, the security of the institution, or to assist in an investigation . . ." Id. at 18. Defendants cite to the third level response to Plaintiff's administrative appeal of this claim (log no. 03-366), as evidence that Plaintiff was made aware of this administrative segregation policy prohibiting hard shoes, like Plaintiff's, because they pose a security hazard. Id. (citing Compl., Ex. H).
Defendants discuss only Defendant Moreno because Plaintiff never served Defendant Avila.
This refers to a plan that resulted from Armstrong v. Davis, Case No. 94cv2307 (NDCA), a class action to enforce the Americans with Disabilities Act in California prisons. Defs.' Mem. at 18, n. 12.
In his opposition, Plaintiff claims that his orthopedic shoes did not have steel components. Pl.'s Opp'n at 18.
Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 638-40 (1987). "Qualified immunity is 'an entitlement not to stand trial or face the other burdens of litigation.'" Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). This privilege is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id. at 200-01 (quoting Mitchell, 472 U.S. at 526). Thus, the Supreme Court "repeatedly [has] stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Id. at 201 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
In Saucier, the Supreme Court established a two-step inquiry for determining whether an official is entitled to qualified immunity. Scott v. Harris, 127 S.Ct. 1769, 1774 (2007); Saucier, 533 U.S. at 201; Phillips v. Hust, 477 F.3d 1070, 1079 (9th Cir. 2007). "A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry." Saucier, 533 U.S. at 201. "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. Only if a constitutional violation could be found should the court move on to the second step and consider whether the right was clearly established such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."Id. at 202. If an officer makes a reasonable mistake as to what the law requires — i.e. the right is not clearly established — the officer is entitled to immunity. Id. at 202-03.
The Court must first consider then whether, taken in the light most favorable to Plaintiff, the facts alleged show that Defendants Avila and Moreno's conduct violated the Eighth Amendment. Saucier, 533 U.S. at 201. As Defendants appear to concede by skipping over this threshold question and arguing the second prong of the Saucier test, Plaintiff's allegations may be sufficient to show that the correctional officers violated Plaintiff's Eighth Amendment rights by depriving him of his medically-prescribed shoes and, thereby, depriving him of outdoor exercise for a prolonged period of time. The Ninth Circuit has long held that "a deprival of outdoor exercise to prisoners incarcerated for long periods and under highly restrictive conditions of confinement constitute[s] cruel and unusual punishment" under the Eighth Amendment. Allen v. City County of Honolulu, 39 F.3d 936, 938-939 (9th Cir. 1994) (citing Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979)). Here, Plaintiff claims to have been detained in administrative segregation without his shoes from May 17, 2004 through July 25, 2005. Compl. at 68. TheAllen court found a constitutional deprivation sufficient to overcome a claim of qualified immunity where the prisoner had been detained in disciplinary segregation for only four months.Allen, 39 F.3d at 939. Therefore, the Court finds Plaintiff has plead sufficient facts to allege a constitutional violation.Saucier, 533 U.S. at 201.
Plaintiff has presented no evidence that his ADA claim rises to the level of a constitutional violation and this Court declines at this time to find that ADA violations are synonymous with constitutional violations. In fact, in distinguishing ADA violations from constitutional claims related to denial of access to the courts, the Ninth Circuit specifically referred to prisoner ADA claims as seeking to enforce "a statutorily-protected interest in equal access with other prisoners" (emphasis in original). Armstrong v. Davis, 275 F.3d 849, 880 (9th Cir. 2001).
The next question then is whether the right was clearly established such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."Id. at 202. Defendants argue that it was not sufficiently clear to Moreno that he was violating Plaintiff's rights because Moreno simply was enforcing a prison regulation enacted in conformity with the Armstrong remedial plan. Defs.' Mem. at 18. Defendants cite toDittman v. California, 191 F.3d 1020, 1027 (9th Cir. 1999) for the Ninth Circuit precedent establishing that "when a public official acts in reliance on a duly enacted statute or ordinance, that official ordinarily is entitled to qualified immunity." Id. at 18. Though Defendants have correctly cited the conclusion of the Dittman court, the Dittman case is inapplicable to the instant situation because Dittman addressed only statutes andordinances, not prison policies. "Such a policy, of course, could not make reasonable a belief that was contrary to a decided body of case law." Wilson v. Layne, 526 U.S. 603, 617 (1999). Only if the applicable case law was unclear or undeveloped would it be appropriate for the Court to find qualified immunity shielded an officer who reasonably relied upon a formal prison policy. See id.
On the facts currently before this Court, the Court finds that Moreno is not entitled to qualified immunity. It has been clearly-established in this Circuit since at least 1979 that "a deprival of outdoor exercise to prisoners incarcerated for long periods and under highly restrictive conditions of confinement constitute[s] cruel and unusual punishment" under the Eighth Amendment. Allen, 39 F.3d at 938-939.
Furthermore, from the limited evidence presented by Defendants, it does not appear that Moreno in fact acted in conformance with the Armstrong remedial plan. While it appears that Defendants quoted from the 2001 revision of the plan, they have not provided the Court with a full copy of any version of the Armstrong remedial plan. However, according to the original remedial plan filed in Armstrong v. Davis on November 30, 1998 (Case No. 94cv2307, Doc. No. 337), removal of health care appliances is strictly limited as follows:
a) Health care appliances, as defined in CCR Section 3358, shall be taken away from an inmate in ASU, SHU or other disciplinary detention units only to ensure the safety of persons, the security of the institution, or to assist in an investigation (which may include collecting the appliance as evidence of a crime) and only when supported by documented evidence. No inmate will be deprived of his or her appliance because of the acts of another inmate.
b) If the health care appliance presents a direct and immediate threat to safety and security, the appliance may be taken away immediately by any custody staff. The senior custody officer on duty may temporarily authorize the taking away of an inmate's appliance for any of the reasons listed in the foregoing paragraph; however, the process described below must be followed as soon as possible, at least by the next business day, if the appliance is to be retained. In no event shall the procedures set out herein obstruct standard protocols for crime scene preservation, evidence collection, emergency response or any other measure necessary for the safety of persons and security of the institution.
c) When a health care appliance is taken away from an inmate in special housing for reasons of safety and security, the senior custody officer in charge shall consult the Health Care Manager, Chief Medical Officer or designee, regarding the inmate's need for the appliance and reasonable alternative in-cell accommodations. The senior officer in charge shall then inform the Warden or designee of the incident and the alternative means to accommodate the inmate. The Warden or designee shall decide what course to take regarding depriving the inmate of the appliance and providing alternative in-cell accommodation. If the decision is to retain the appliance, it will be stored in a designated location in the unit and provided to the inmate if needed when released from his or her cell for yard , escorts, visits, etc. Medical staff shall evaluate the inmate's ability to function without the appliance, as appropriate.
(emphasis added) Case No. 94cv2307, Doc. No. 337, § H.20. Nothing in the record before this Court demonstrates that Moreno followed proper procedure in retaining Plaintiff's medically-prescribed shoes for over fourteen months and failing to provide them to Plaintiff when he was released into the yard for exercise. Plaintiff attached numerous passes and medical authorization forms to his Complaint, which demonstrate that he required the shoes and had permission to use them (see Compl., Ex. H) and Defendants have provided no contrary evidence. Moreover, Defendants state in a wholly conclusory manner without any evidentiary support that "Plaintiff was advised that if he needed any help walking in the Administrative Segregation Unit, staff were available for assistance." Defs.' Mem. at 18. Absent some support for Defendants' claims, Defendants fail to demonstrate that the law was not clearly-established, that Moreno acted reasonably and that, therefore, he is entitled to qualified immunity. Accordingly, this Court RECOMMENDS that the District Judge DENY Defendants' motion to dismiss Defendant Moreno.
The record before the Court also does not allow the Court to determine whether or not Plaintiff's shoes did, in fact, contain metal or whether the presence or absence of removable metal in the shoe would alter the analysis as to whether Moreno complied with the Armstrong remedial plan.
CONCLUSION
For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation, (2) denying Defendants' Motion to Dismiss Defendant Moreno, and (3) granting Defendants' Motion to Dismiss the remaining Defendants.
IT IS HEREBY ORDERED that any written objections to this Report must be filed with the Court and served on all parties no later than December 27, 2007 . The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than January 18, 2008. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).