Townes v. Paule

• Decision Date: 13 December 2005
• Docket Number: No. CIV. 05CV0264JAHAJB.,CIV. 05CV0264JAHAJB.
• Citation: 407 F.Supp.2d 1210
• Court: U.S. District Court — Southern District of California
• Parties: Gary Maurice TOWNES, Plaintiff, v. E. PAULE, (sued erroneously as "Polley"), et al., Defendants.

407 F.Supp.2d 1210

Gary Maurice TOWNES, Plaintiff, v. E. PAULE, (sued erroneously as "Polley"), et al., Defendants.

No. CIV. 05CV0264JAHAJB.

United States District Court, S.D. California.

December 13, 2005.

COPYRIGHT MATERIAL OMITTED

Gary Maurice Towens, in pro per.

Deputy Attorney General G. Michael German, San Diego, CA, for Defendants.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT WITHOUT PREJUDICE

HOUSTON, District Judge.

INTRODUCTION

Plaintiff, a state prisoner proceeding pro se, filed a complaint, pursuant to 42 U.S.C. § 1983, alleging defendants violated his constitutional rights. In lieu of an answer, defendants Brunner, Castillo and Paule (collectively "defendants") filed a motion to dismiss the complaint on the grounds that plaintiff failed to comply with the exhaust requirement set forth by the Prison Litigation Reform Act ("PLRA"). Pursuant to 28 U.S.C. § 636(b)(1), the Honorable Anthony J. Battaglia, United States Magistrate Judge, submitted a report and recommendation ("report") to this Court recommending defendants' motion be granted. Objections to the report were due by September 30, 2005, but neither party filed objections. After careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court ADOPTS the magistrate judge's report in its entirety and GRANTS defendants' motion in its entirety.

BACKGROUND

The instant complaint, filed on February 7, 2005, alleges that, on January 6, 2004, defendant Paule used excessive force upon plaintiff by pushing and kicking him while handcuffed causing physical injuries. The complaint further alleges defendants Brunner and Castillo did nothing to stop defendant Paule's attacks on plaintiff.

Defendants filed the instant motion to dismiss the complaint on June 21, 2005. Plaintiff filed an opposition (erroneously labeled "Traverse") to the motion on July 7, 2005. Defendants filed a reply to plaintiff's opposition on August 17, 2005. The magistrate judge's report was filed on September 6, 2005. No objections were filed by any party.

DISCUSSION

1. Legal Standard

The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id. When no objections are filed, the Court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974); Johnson v. Nelson, 142 F.Supp.2d 1215, 1217 (S.D.Cal. 2001). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir.1983)).

2. Analysis

The Court received no objections to the report and no request for an extension of time in which to file any objections. As such, the Court assumes the correctness of the magistrate judge's factual findings and adopts them in full. The Court has conducted a de novo review, independently reviewing the report and all relevant papers submitted by both parties, and finds that the report provides a cogent analysis of the issues presented in the motion. Specifically, this Court agrees with the magistrate judge's conclusion that plaintiff failed to exhaust his administrative remedies prior to filing the instant complaint and thus finds the complaint must be dismissed without prejudice. See Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).

CONCLUSION AND ORDER

For the reasons set forth above, IT IS HEREBY ORDERED that:

1. The findings and conclusions of the magistrate judge presented in the report and recommendation are ADOPTED in their entirety; and

2. The instant complaint is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.

Report and Recommendation to Grant Motion to Dismiss [Doc. No. 9]

BATTAGLIA, United States Magistrate Judge.

Defendants Brunner, Castillo and Paule move to dismiss the claims set forth against them in Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to comply with the Prison Litigation Reform Act's (PLRA) exhaustion requirement. Plaintiff has filed an opposition and the Defendants have filed a reply brief. These motions are appropriate for submission on the papers and without oral argument pursuant to Local Rule 7.1(d)(1). For the reasons set forth herein, it is recommended that Defendants' Motion to Dismiss be GRANTED without prejudice.

Background

Plaintiff Gary Maurice Townes is an inmate incarcerated at the Richard J. Donovan Correctional Facility. Plaintiff initiated this action on February 7, 2005, when he filed the instant complaint alleging that on January 6, 2004. Defendant Paule used excessive force against him by pushing and kicking him while he was handcuffed. According to Plaintiff's Complaint, he suffered a sprained finger, multiple bruises, and a lower back injury that "is yet to be fully diagnosed." Pla. Compl. at 4. Plaintiff also claims that Defendants Brunner and Castillo "stood by and did nothing to stop the unlawful attacks" allegedly perpetrated by Defendant Paule. Id.

In section D.2 of his Complaint, Plaintiff states that he previously sought and exhausted all administrative remedies required by the PLRA. 42 U.S.C. § 1997e. However, in the statement of facts in his Complaint, Plaintiff states that he "did not engage in administrative remedie[s] via the 602 process, as it was made clear that the officers were being found guilty, and no further administrative actions would be required or in any way beneficial." Pla. Compl. at 4. Plaintiff bases his assertion on the fact that he filed a citizen's compliant under section 3391(b) of the California Code of Regulations, Title 15, under penalty of perjury, which was subsequently investigated by Internal Affairs and the allegations contained therein sustained.

Legal Standard

Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The section 1997e(a) exhaustion requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner or offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). "All `available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective.'" Porter, 534 U.S. at 524, 122 S.Ct. 983 (citing Booth, 532 U.S. at 739 n. 5, 121 S.Ct. 1819). However, without the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust. Booth, 532 U.S. at 736 n. 4, 121 S.Ct. 1819.

The purpose of section 1997e(a) was to reduce the quantity and improve the quality of prisoner suits and to provide corrections officials with the time and opportunity to address complaints internally, before allowing the prisoner to initiate a federal case. Porter, 534 U.S. at 525, 122 S.Ct. 983 (2002). As articulated by Ninth Circuit opinions, there are two principal policies behind the administrative exhaustion rule. The first is to protect an administrative agency's authority by giving the agency the first opportunity to resolve a controversy before a court intervenes in the dispute. Ngo v. Woodford, 403 F.3d 620, 624 (9th Cir.2005). The second is to promote judicial efficiency by either resolving the dispute outside of the courts, or by producing a factual record that can aide the court in processing a plaintiff's claim. Id. Thus, exhaustion must occur prior to filing the suit and the prisoner may not exhaust while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir.2002).

The California Department of Corrections' administrative grievance system for prisoner complaints states that "[a]ny inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can reasonably demonstrate as having an adverse effect upon their welfare." Cal.Code Regs., tit. 15 § 3084, et seq., at 3084.1(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Cal.Code Regs. tit 15, § 3084.5 (2004). A prisoner is required to submit the appeal within 15 work days of the event or decision appealed or of receiving an unsatisfactory decision on a lower level. 15 Cal. Admin. Code § 3084.6(c). The regulations require the use of specific forms but contains no guidelines for grievance content. 15 Cal. Admin. Code §§ 3084.2, 3085 (designating use of CDC Form 602 Inmate/Parolee Appeal Form for all grievances except those related to disabilities under the Americans with Disabilities Act, which are filed on CDC Form 1824, Reasonable Modification or Accommodation Request). Prisoners ordinarily must present their allegations on one informal and three formal levels of...