1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WALTER PERSON, No. 2:20-cv-0065 AC P 12 Plaintiff, 13 v. ORDER and 14 ROBERT BURTON, FINDINGS AND RECOMMENDATIONS 15 Defendant. 16 17 I. Introduction 18 Plaintiff is a California state prisoner who proceeds pro se with an application to proceed 19 in forma pauperis and a civil rights complaint filed pursuant to 42 U.S.C. § 1983. 20 This action is referred to the undersigned United States Magistrate Judge pursuant to 28 21 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, the court grants 22 plaintiff’s request to proceed in forma pauperis but recommends dismissal of this action based on 23 the non-exhaustion of plaintiff’s prison administrative remedies. 24 II. In Forma Pauperis Application 25 Plaintiff has submitted an unsigned affidavit, ECF No. 2, which together with the official 26 and prison trust account statement, ECF No. 5, make the showing required by 28 U.S.C. § 27 1915(a). Accordingly, plaintiff’s request to proceed in forma pauperis will be granted. 28 //// 1 Plaintiff must nevertheless pay the statutory filing fee of $350.00 for this action. 28 2 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee 3 in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will 4 direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account 5 and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 6 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 7 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 8 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 9 1915(b)(2). 10 III. Screening of Plaintiff’s Complaint 11 A. Legal Standards for Screening Prisoner Civil Rights Complaints 12 The court is required to screen complaints brought by prisoners seeking relief against a 13 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 14 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 15 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 16 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 17 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 18 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 19 1984). 20 B. The Complaint 21 The unsigned complaint, filed on January 8, 2020, names a single defendant, Robert 22 Burton, Warden of CDCR’s Deuel Vocational Institution (DVI) in Tracy. Plaintiff filed the 23 complaint after his transfer away from DVI. The complaint alleges that unsanitary living 24 conditions at DVI during plaintiff’s incarceration there violated the Eighth Amendment. Plaintiff 25 alleges, ECF No. 1 at 3: 26 The living conditions were unsanitary and inhuman. I had no clean water to eat or bathe with, no hot water, no electricity, no windows, 27 the toilet was backed up and overflowed with no cleaning supplies to clean the cell. Rats and roaches were in the cell also. 28 1 Plaintiff seeks compensatory and punitive damages in the amount of $135,000 ($1500 per day for 2 90 days). ECF No. 1 at 5, 8. Plaintiff states that he submitted a prison administrative grievance, 3 but concedes that he did not exhaust his administrative remedies before filing this action. Id. at 2 4 (“The state hasn’t responded yet and I’m no longer at that facility.”). Plaintiff has submitted a 5 copy of a state government claim he submitted on January 2, 2020 under the California 6 Government Claims Act. Id. at 8-9. In that claim plaintiff identifies the date of the alleged 7 incident at DVI as August 24, 2017.1 Id. at 8. 8 C. Exhaustion Requirement 9 The Prison Litigation Reform Act of 1995 (PLRA) mandates that “[n]o action shall be 10 brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a 11 prisoner confined in any jail, prison, or other correctional facility until such administrative 12 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of available 13 administrative remedies is thus a prerequisite to commencing a federal civil rights action. See 14 Rhodes v. Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010) (the “exhaustion requirement does not 15 allow a prisoner to file a complaint addressing non-exhausted claims.”). When a complaint is 16 filed prior to exhaustion, it must be dismissed without prejudice. McKinney v. Carey, 311 F.3d 17 1198, 1200-01 (9th Cir. 2002) (per curiam). “The bottom line is that a prisoner must pursue the 18 prison administrative process as the first and primary forum for redress of grievances. He may 19 initiate litigation in federal court only after the administrative process ends and leaves his 20 grievances unredressed. It would be inconsistent with the objectives of the statute to let him 21 submit his complaint any earlier than that.” Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 22 2006). 23 The Supreme Court has held that exhaustion under the PLRA requires compliance with 24 the state’s own procedures and regulations. “[T]o properly exhaust administrative remedies 25 prisoners must ‘complete the administrative review process in accordance with the applicable 26
27 1 In California, a damages claim for personal injury against a governmental entity must be submitted within six months after accrual of the cause of action. Cal. Govt. Code § 911.2. It 28 appears that plaintiff missed this deadline. 1 procedural rules’– rules that are defined not by the PLRA, but by the prison grievance process 2 itself. Compliance with prison grievance procedures, therefore, is all that is required by the 3 PLRA to ‘properly exhaust.’” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford v. 4 Ngo, 548 U.S. 81, 88 (2006)). 5 Administrative exhaustion is generally evaluated on summary judgment pursuant to Rule 6 56, Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), 7 cert. denied sub nom. Scott v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WALTER PERSON, No. 2:20-cv-0065 AC P 12 Plaintiff, 13 v. ORDER and 14 ROBERT BURTON, FINDINGS AND RECOMMENDATIONS 15 Defendant. 16 17 I. Introduction 18 Plaintiff is a California state prisoner who proceeds pro se with an application to proceed 19 in forma pauperis and a civil rights complaint filed pursuant to 42 U.S.C. § 1983. 20 This action is referred to the undersigned United States Magistrate Judge pursuant to 28 21 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, the court grants 22 plaintiff’s request to proceed in forma pauperis but recommends dismissal of this action based on 23 the non-exhaustion of plaintiff’s prison administrative remedies. 24 II. In Forma Pauperis Application 25 Plaintiff has submitted an unsigned affidavit, ECF No. 2, which together with the official 26 and prison trust account statement, ECF No. 5, make the showing required by 28 U.S.C. § 27 1915(a). Accordingly, plaintiff’s request to proceed in forma pauperis will be granted. 28 //// 1 Plaintiff must nevertheless pay the statutory filing fee of $350.00 for this action. 28 2 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee 3 in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will 4 direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account 5 and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 6 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 7 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 8 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 9 1915(b)(2). 10 III. Screening of Plaintiff’s Complaint 11 A. Legal Standards for Screening Prisoner Civil Rights Complaints 12 The court is required to screen complaints brought by prisoners seeking relief against a 13 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 14 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 15 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 16 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 17 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 18 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 19 1984). 20 B. The Complaint 21 The unsigned complaint, filed on January 8, 2020, names a single defendant, Robert 22 Burton, Warden of CDCR’s Deuel Vocational Institution (DVI) in Tracy. Plaintiff filed the 23 complaint after his transfer away from DVI. The complaint alleges that unsanitary living 24 conditions at DVI during plaintiff’s incarceration there violated the Eighth Amendment. Plaintiff 25 alleges, ECF No. 1 at 3: 26 The living conditions were unsanitary and inhuman. I had no clean water to eat or bathe with, no hot water, no electricity, no windows, 27 the toilet was backed up and overflowed with no cleaning supplies to clean the cell. Rats and roaches were in the cell also. 28 1 Plaintiff seeks compensatory and punitive damages in the amount of $135,000 ($1500 per day for 2 90 days). ECF No. 1 at 5, 8. Plaintiff states that he submitted a prison administrative grievance, 3 but concedes that he did not exhaust his administrative remedies before filing this action. Id. at 2 4 (“The state hasn’t responded yet and I’m no longer at that facility.”). Plaintiff has submitted a 5 copy of a state government claim he submitted on January 2, 2020 under the California 6 Government Claims Act. Id. at 8-9. In that claim plaintiff identifies the date of the alleged 7 incident at DVI as August 24, 2017.1 Id. at 8. 8 C. Exhaustion Requirement 9 The Prison Litigation Reform Act of 1995 (PLRA) mandates that “[n]o action shall be 10 brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a 11 prisoner confined in any jail, prison, or other correctional facility until such administrative 12 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of available 13 administrative remedies is thus a prerequisite to commencing a federal civil rights action. See 14 Rhodes v. Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010) (the “exhaustion requirement does not 15 allow a prisoner to file a complaint addressing non-exhausted claims.”). When a complaint is 16 filed prior to exhaustion, it must be dismissed without prejudice. McKinney v. Carey, 311 F.3d 17 1198, 1200-01 (9th Cir. 2002) (per curiam). “The bottom line is that a prisoner must pursue the 18 prison administrative process as the first and primary forum for redress of grievances. He may 19 initiate litigation in federal court only after the administrative process ends and leaves his 20 grievances unredressed. It would be inconsistent with the objectives of the statute to let him 21 submit his complaint any earlier than that.” Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 22 2006). 23 The Supreme Court has held that exhaustion under the PLRA requires compliance with 24 the state’s own procedures and regulations. “[T]o properly exhaust administrative remedies 25 prisoners must ‘complete the administrative review process in accordance with the applicable 26
27 1 In California, a damages claim for personal injury against a governmental entity must be submitted within six months after accrual of the cause of action. Cal. Govt. Code § 911.2. It 28 appears that plaintiff missed this deadline. 1 procedural rules’– rules that are defined not by the PLRA, but by the prison grievance process 2 itself. Compliance with prison grievance procedures, therefore, is all that is required by the 3 PLRA to ‘properly exhaust.’” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford v. 4 Ngo, 548 U.S. 81, 88 (2006)). 5 Administrative exhaustion is generally evaluated on summary judgment pursuant to Rule 6 56, Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), 7 cert. denied sub nom. Scott v. Albino, 135 S. Ct. 403 (2014). However, because exhaustion is a 8 prerequisite to filing, a prisoner complaint is subject to dismissal at the pleading stage “[i]n the 9 rare event that a failure to exhaust is clear on the face of the complaint.” Id. at 1166; see also 10 Jones, 549 U.S. at 215; Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s 11 concession to nonexhaustion is a valid ground for dismissal”), overruled on other grounds by 12 Albino, 747 F.3d at 1166. 13 D. Discussion 14 In the present case, the complaint acknowledges on its face that plaintiff did not exhaust 15 his administrative remedies regarding conditions at DVI before filing this lawsuit. ECF No. 1 at 16 2. Accordingly, this is one of those cases in which dismissal at the pleading stage is appropriate. 17 See Wyatt, supra. 18 Plaintiff’s explanation that the “state hasn’t responded yet and I’m no longer at that 19 facility” does not, and cannot as a matter of law, excuse his failure to exhaust. CDCR regulations 20 provide that pending inmate appeals continue to be processed when an inmate is transferred from 21 one institution to another. See CDCR DOM § 54100.18 (“Appeal Processing Responsibilities 22 Involving Two Departmental Institutions/ Regions”).2 This necessarily means that an 23
24 2 CDCR’s Department Operations Manual (DOM) provides in pertinent part at § 54100.18: 25 When an inmate/parolee files an appeal at one institution or parole region, and is then transferred prior to the appeal response being completed, the 26 sending institution/parole region shall continue to complete the response. The receiving institution/parole region shall provide assistance as needed by 27 the sending institution/parole region, including but not limited to coordinating and/or interviewing the appellant, to facilitate the timely 28 completion of the appeal response. 1 administrative appeal process remained available to plaintiff after his transfer. Accordingly, no 2 exception to the exhaustion requirement is available to plaintiff. Ross v. Blake, 136 S. Ct. 1850, 3 1856-1857 (2016) (only exception to PLRA’s exhaustion requirement is the unavailability of a 4 grievance process). 5 Because it is clear from the face of the complaint that plaintiff did not pursue his only 6 claim through CDCR’s administrative review process before commencing this action, the 7 complaint must be dismissed without prejudice. See McKinney, 311 F.3d at 1200-01. Because 8 dismissal is mandatory under the PLRA, the complaint fails to present any claim upon which 9 relief may be granted. Accordingly, dismissal on screening is required by 28 U.S.C. § 10 1915A(b)(1). 11 IV. Conclusion 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s request to proceed in forma pauperis, ECF No. 2, is granted. 14 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 15 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 16 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 17 Director of the California Department of Corrections and Rehabilitation filed concurrently 18 herewith. 19 3. The Clerk of Court is directed to randomly assign a district judge to this action. 20 Additionally, IT IS HEREBY RECOMMENDED that this action be dismissed without 21 prejudice under 28 U.S.C. § 1915A(b)(1), for failure to state a claim, based on plaintiff’s 22 concession that he failed to exhaust available prison administrative remedies before filing the 23 instant complaint. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 26 days after being served with these findings and recommendations, plaintiff may file written 27 objections with the court. Such a document should be captioned “Objections to Magistrate 28 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within MwA 2 OVE AINE ENN RIO OIC I er OY OV VN
1 || the specified time may waive the right to appeal the District Court’s order. Martinez v. □□□□□ 951 2 | F.2d 1153 (9th Cir. 1991). 3 || DATED: May 6, 2020 ~ 4 Attten— ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28