1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOEL CHAVEZ, Case No. 19-cv-00362-JSC
8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS
10 D. MILLIGAN, et al., Re: Dkt. No. 35 Defendants. 11
12 INTRODUCTION 13 Plaintiff, a California prisoner, filed this pro se civil rights action under 42 U.S.C. § 1983.1 14 He claimed that Defendants D. Milligan, C. Mart, and B. Tubbs, three correctional officers at 15 Pelican Bay State Prison (“PBSP”), used excessive force against him. The Court reviewed the 16 Complaint pursuant to 28 U.S.C. § 1915A and found that it, when liberally construed, stated a 17 claim upon which relief could be granted for the violation of Plaintiff’s Eighth Amendment right 18 to be free from cruel and unusual punishment. The Court granted Defendants’ motion to dismiss 19 on exhaustion grounds under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and dismissed 20 the Complaint with leave to amend the claims against Milligan and Mart. The claims against 21 Tubbs were dismissed without leave to amend because Plaintiff requested that they be dismissed. 22 Plaintiff filed a timely First Amended Complaint (“FAC”) asserting excessive force claims 23 against Milligan and Mart (“Defendants”). Defendants have moved to dismiss Plaintiff’s claims 24 as amended on exhaustion grounds under Rule 12(b)(6). Plaintiff has filed an opposition, and 25 Defendants filed a reply brief. For the reasons discussed below, the motion to dismiss is 26 GRANTED. 27 1 2 BACKGROUND 3 According to the allegations in the FAC and its attachments, on October 24, 2017, 4 Defendants Milligan and Mart beat him while escorting him to his cell, causing severe injuries to 5 his head, back, and knees. (ECF No. 33 at 6-8.) He alleges that he did not provoke the attack, was 6 in handcuffs, and complied with Defendants’ orders. (Id. at 7-8.) He also alleges that Defendants 7 attacked him because they believed he had been involved in an attack on other prison officials in 8 May 2017.2 (Id. at 9-10, 14.) On November 26, 2017, Plaintiff was transferred to California State 9 Prison, Sacramento. (Id. at 10.) On January 28, 2018, Plaintiff filed an administrative grievance 10 complaining about Defendants’ use of force. (Id. at 11; Ex. B-2.) Prison officials rejected the 11 grievance as untimely. (Id.) 12 DISCUSSION 13 The Court dismissed the Complaint for lack of administrative exhaustion because 14 Plaintiff’s attempt to pursue his available administrative remedies was untimely under the 15 applicable prison regulations. See generally Woodford v. Ngo, 548 U.S. 81, 84 (2006) (the 16 PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise 17 procedurally defective administrative grievance or appeal"). Specifically, Defendants allegedly 18 assaulted Plaintiff on October 24, 2017, and prison regulations required Plaintiff to file his 19 grievance within thirty days, i.e. by November 23, 2017, see 15 Cal. Code Regs. §§ 3084.8(a), 20 (b)(1)-(3), but he did not file it until January 28, 2018. (ECF No. 1 at 34.) These facts were clear 21 from the face of the Complaint and its attachments. (ECF No. 1 at 2, 10; Ex. D.) 22 Plaintiff argued that the Court should excuse his failure to exhaust because he feared 23 retaliation by prison officials if he pursued his administrative remedies. The threat of retaliation 24 for reporting an incident can render the prison grievance process effectively unavailable and 25 thereby excuse a prisoner’s failure to exhaust administrative remedies under the PLRA. See 26
27 2 Plaintiff alleges he was disciplined for the attack on prison officials, but those disciplinary 1 McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015). The test for whether exhaustion may be 2 excused on this basis is as follows:
3 To show that a threat rendered the prison grievance system unavailable, a prisoner must provide a basis for the court to find that 4 he actually believed prison officials would retaliate against him if he filed a grievance. If the prisoner makes this showing, he must then 5 demonstrate that his belief was objectively reasonable. That is, there must be some basis in the record for the district court to conclude 6 that a reasonable prisoner of ordinary firmness would have believed that the prison official's action communicated a threat not to use the 7 prison's grievance procedure and that the threatened retaliation was of sufficient severity to deter a reasonable prisoner from filing a 8 grievance. 9 Id. at 987. The Court found that while allegations in the Complaint and its attachments showed 10 that Plaintiff actually believed officials would retaliate against him, they did not show that his 11 belief was objectively reasonable. Plaintiff was granted leave to file an amended complaint in 12 which he alleged facts --- if he could do so in good faith --- that satisfied both prongs of McBride, 13 i.e. showed both that he actually believed officials would retaliate against him and that “a 14 reasonable prisoner of ordinary firmness” would have felt sufficiently threatened by Defendants to 15 not pursue their administrative remedies. See id. The FAC satisfies neither prong of McBride. 16 In his FAC, Plaintiff claims that he feared retaliation for filing administrative grievances 17 about Defendants’ use of force because of a confrontation with Defendant Milligan in November 18 2017.3 According to Plaintiff, Milligan stole administrative grievance papers from his cell,4 and 19 when Plaintiff confronted him, he told Plaintiff that he would not let Plaintiff file any further 20 grievances, threatened to kill him if he did file grievances, and endangered Plaintiff’s life by 21 informing other prisoners that Plaintiff was a pedophile and in a mental health program. (ECF No. 22 33 at 9, 12.) On November 21, 2017, Plaintiff filed an administrative grievance complaining 23 about this incident. (Id. at 9; Ex. B-1 at 47-51.) 24 3 Plaintiff does not recall the precise date this incident occurred, but he states that it occurred a 25 “few days after” he received the stolen grievance papers, which were dated November 7, 2017. (ECF No. 33 at 9; Ex. B at 42.) He also alleges that he filed a grievance about the incident on 26 November 21, 2017. (Id. at 9; Ex. B-1 at 47-51.) Based upon these allegations, for the purposes of this analysis, the Court assumes the incident occurred sometime between November 7 and 21, 27 2017. 1 The November 21 grievance belies the plausibility of Plaintiff’s allegation of subjective 2 fear of retaliation because it shows that any fear of retaliation did not deter him from filing 3 grievances generally. The grievance that he filed, moreover, was about conduct --- Milligan’s 4 alleged theft of his papers and threats --- that he claims deterred him from filing grievances. 5 Plaintiff had until November 23, 2017, to file a timely grievance against Defendants about their 6 use of force. Therefore, on November 21, 2017, when he filed a grievance about Milligan’s 7 alleged theft of his papers and threats, he could have filed a timely grievance about Milligan’s and 8 Mart’s use of force. The FAC does not include allegations that explain why he failed to do so, or 9 why he feared retaliation for filing a grievance about the use of force but not for filing a grievance 10 about the theft of his papers and threats.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOEL CHAVEZ, Case No. 19-cv-00362-JSC
8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS
10 D. MILLIGAN, et al., Re: Dkt. No. 35 Defendants. 11
12 INTRODUCTION 13 Plaintiff, a California prisoner, filed this pro se civil rights action under 42 U.S.C. § 1983.1 14 He claimed that Defendants D. Milligan, C. Mart, and B. Tubbs, three correctional officers at 15 Pelican Bay State Prison (“PBSP”), used excessive force against him. The Court reviewed the 16 Complaint pursuant to 28 U.S.C. § 1915A and found that it, when liberally construed, stated a 17 claim upon which relief could be granted for the violation of Plaintiff’s Eighth Amendment right 18 to be free from cruel and unusual punishment. The Court granted Defendants’ motion to dismiss 19 on exhaustion grounds under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and dismissed 20 the Complaint with leave to amend the claims against Milligan and Mart. The claims against 21 Tubbs were dismissed without leave to amend because Plaintiff requested that they be dismissed. 22 Plaintiff filed a timely First Amended Complaint (“FAC”) asserting excessive force claims 23 against Milligan and Mart (“Defendants”). Defendants have moved to dismiss Plaintiff’s claims 24 as amended on exhaustion grounds under Rule 12(b)(6). Plaintiff has filed an opposition, and 25 Defendants filed a reply brief. For the reasons discussed below, the motion to dismiss is 26 GRANTED. 27 1 2 BACKGROUND 3 According to the allegations in the FAC and its attachments, on October 24, 2017, 4 Defendants Milligan and Mart beat him while escorting him to his cell, causing severe injuries to 5 his head, back, and knees. (ECF No. 33 at 6-8.) He alleges that he did not provoke the attack, was 6 in handcuffs, and complied with Defendants’ orders. (Id. at 7-8.) He also alleges that Defendants 7 attacked him because they believed he had been involved in an attack on other prison officials in 8 May 2017.2 (Id. at 9-10, 14.) On November 26, 2017, Plaintiff was transferred to California State 9 Prison, Sacramento. (Id. at 10.) On January 28, 2018, Plaintiff filed an administrative grievance 10 complaining about Defendants’ use of force. (Id. at 11; Ex. B-2.) Prison officials rejected the 11 grievance as untimely. (Id.) 12 DISCUSSION 13 The Court dismissed the Complaint for lack of administrative exhaustion because 14 Plaintiff’s attempt to pursue his available administrative remedies was untimely under the 15 applicable prison regulations. See generally Woodford v. Ngo, 548 U.S. 81, 84 (2006) (the 16 PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise 17 procedurally defective administrative grievance or appeal"). Specifically, Defendants allegedly 18 assaulted Plaintiff on October 24, 2017, and prison regulations required Plaintiff to file his 19 grievance within thirty days, i.e. by November 23, 2017, see 15 Cal. Code Regs. §§ 3084.8(a), 20 (b)(1)-(3), but he did not file it until January 28, 2018. (ECF No. 1 at 34.) These facts were clear 21 from the face of the Complaint and its attachments. (ECF No. 1 at 2, 10; Ex. D.) 22 Plaintiff argued that the Court should excuse his failure to exhaust because he feared 23 retaliation by prison officials if he pursued his administrative remedies. The threat of retaliation 24 for reporting an incident can render the prison grievance process effectively unavailable and 25 thereby excuse a prisoner’s failure to exhaust administrative remedies under the PLRA. See 26
27 2 Plaintiff alleges he was disciplined for the attack on prison officials, but those disciplinary 1 McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015). The test for whether exhaustion may be 2 excused on this basis is as follows:
3 To show that a threat rendered the prison grievance system unavailable, a prisoner must provide a basis for the court to find that 4 he actually believed prison officials would retaliate against him if he filed a grievance. If the prisoner makes this showing, he must then 5 demonstrate that his belief was objectively reasonable. That is, there must be some basis in the record for the district court to conclude 6 that a reasonable prisoner of ordinary firmness would have believed that the prison official's action communicated a threat not to use the 7 prison's grievance procedure and that the threatened retaliation was of sufficient severity to deter a reasonable prisoner from filing a 8 grievance. 9 Id. at 987. The Court found that while allegations in the Complaint and its attachments showed 10 that Plaintiff actually believed officials would retaliate against him, they did not show that his 11 belief was objectively reasonable. Plaintiff was granted leave to file an amended complaint in 12 which he alleged facts --- if he could do so in good faith --- that satisfied both prongs of McBride, 13 i.e. showed both that he actually believed officials would retaliate against him and that “a 14 reasonable prisoner of ordinary firmness” would have felt sufficiently threatened by Defendants to 15 not pursue their administrative remedies. See id. The FAC satisfies neither prong of McBride. 16 In his FAC, Plaintiff claims that he feared retaliation for filing administrative grievances 17 about Defendants’ use of force because of a confrontation with Defendant Milligan in November 18 2017.3 According to Plaintiff, Milligan stole administrative grievance papers from his cell,4 and 19 when Plaintiff confronted him, he told Plaintiff that he would not let Plaintiff file any further 20 grievances, threatened to kill him if he did file grievances, and endangered Plaintiff’s life by 21 informing other prisoners that Plaintiff was a pedophile and in a mental health program. (ECF No. 22 33 at 9, 12.) On November 21, 2017, Plaintiff filed an administrative grievance complaining 23 about this incident. (Id. at 9; Ex. B-1 at 47-51.) 24 3 Plaintiff does not recall the precise date this incident occurred, but he states that it occurred a 25 “few days after” he received the stolen grievance papers, which were dated November 7, 2017. (ECF No. 33 at 9; Ex. B at 42.) He also alleges that he filed a grievance about the incident on 26 November 21, 2017. (Id. at 9; Ex. B-1 at 47-51.) Based upon these allegations, for the purposes of this analysis, the Court assumes the incident occurred sometime between November 7 and 21, 27 2017. 1 The November 21 grievance belies the plausibility of Plaintiff’s allegation of subjective 2 fear of retaliation because it shows that any fear of retaliation did not deter him from filing 3 grievances generally. The grievance that he filed, moreover, was about conduct --- Milligan’s 4 alleged theft of his papers and threats --- that he claims deterred him from filing grievances. 5 Plaintiff had until November 23, 2017, to file a timely grievance against Defendants about their 6 use of force. Therefore, on November 21, 2017, when he filed a grievance about Milligan’s 7 alleged theft of his papers and threats, he could have filed a timely grievance about Milligan’s and 8 Mart’s use of force. The FAC does not include allegations that explain why he failed to do so, or 9 why he feared retaliation for filing a grievance about the use of force but not for filing a grievance 10 about the theft of his papers and threats. 11 Plaintiff asserts that he was not concerned about retaliation by Milligan on November 21, 12 2017, because at that point he knew that he would soon transfer to another prison, away from 13 Milligan’s purview. This assertion, however, is insufficient to support a plausible inference of 14 subjective fear of retaliation for filing a grievance because it simply establishes that on November 15 21, 2017 --- when time still remained before the deadline to grieve the excessive force the claims 16 --- Plaintiff did not actually fear retaliation for filing a grievance against Milligan. Plaintiff also 17 asserts that Milligan intercepted his November 21 grievance, but this does not explain his failure 18 to file a grievance on or before that date about Defendants’ use of force.5 The FAC and its 19 attachments therefore do not support an inference that Plaintiff failed to timely grieve Defendants’ 20 use of force based on a subjective fear of retaliation. 21 Plaintiff offers several other explanations for not grieving the use of force, but none of 22 them, even accepting the factual allegations as true, would excuse him from filing a timely 23 grievance. He alleges that officials damaged his television during his move to another prison on 24 November 26, 2017, that officials interfered with his mail in 2018, and that officials prevented 25 him from submitting a grievance about Defendants’ use of force between December 2017 and 26 5 The allegation of interception is conclusory because it is based solely on Plaintiff’s allegation 27 that he never received a response to the grievance. This is not sufficient to establish that Milligan 1 January 2018.° (Cd. at 10-12.) Such events did not prevent him from filing a timely grievance 2 about his claims as a matter of law because they occurred after his grievance deadline (November 3 23, 2017). Plaintiff also alleges that officials damaged his television on May 25, 2017, because 4 || they believed he had attacked prison officials, that the attack on prison officials was reported by 5 || the news the day before, and that officials placed him in a prison mental health care program 6 || before October 2017 in order to assault him. (/d. at 10.) These alleged actions by prison officials 7 || were not related to Plaintiff's filing of grievances, and as such they do not satisfy McBride’s 8 objective prong. 9 Because the allegations in the FAC and attachments make it clear that Plaintiff did not 10 || properly exhaust his available administrative remedies, as required by the PLRA, and that there 11 are no valid grounds for excusing that requirement, the motion to dismiss under Rule 12(b)(6) 12 || must be granted. Further leave to amend is not warranted as Plaintiff already had the opportunity 5 13 amend his pleadings to show grounds to excuse him from exhaustion, but he failed to do so. CONCLUSION 3 15 For the foregoing reasons, Defendants’ motion to dismiss is GRANTED, and the case is a 16 || DISMISSED without prejudice. The Clerk shall enter judgment and close the file. IT IS SO ORDERED. 18 Dated: February 26, 2021 , Std 19 ACQUELINE SCOTT CORLEY 20 United States Magistrate Judge 21 22 23 24 25 26 27 28 6 According to Plaintiff, this was because Plaintiff had recently submitted another grievance about his broken television.