Ornelas v. Giurbino

• Citation: 358 F.Supp.2d 955
• Decision Date: 14 February 2005
• Docket Number: No. 03 CV 1673-BEN(WMc).,03 CV 1673-BEN(WMc).
• Court: U.S. District Court — Southern District of California
• Parties: Pantera ORNELAS, Plaintiff, v. G J GIURBINO, et al., Defendants.

358 F.Supp.2d 955

Pantera ORNELAS, Plaintiff, v. G J GIURBINO, et al., Defendants.

No. 03 CV 1673-BEN(WMc).

United States District Court, S.D. California.

February 14, 2005.

COPYRIGHT MATERIAL OMITTED

Richard F. Wolfe, Deputy Attorney General, Office of the Attorney General, San Diego, CA, for defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS (Docket No. 15)

BENITEZ, District Judge.

I.

INTRODUCTION.

PANTERA ORNELAS, ("Plaintiff"), an inmate at Centinela State Prison, has filed an action pro se under 42 U.S.C. § 1983, alleging violation of his civil rights. Specifically, he alleges he was denied freedom from cruel and unusual punishment, due process, and access to the courts. (First Amended Complaint at 5-11). Defendants moved to dismiss. The Honorable Magistrate Judge William McCurine Jr. issued a Report and Recommendation, recommending the case be dismissed for failure to exhaust administrative remedies. Plaintiff filed objections to the Report and Recommendation. The Court has made a de novo review of the Report and Recommendation. See, 28 U.S.C. § 636(b). For the reasons set forth below, the Court adopts the Report and Recommendation, and orders the Complaint be dismissed in its entirety without prejudice and without leave to amend for Plaintiff's failure to fully exhaust his administrative remedies.

II.

FACTUAL AND PROCEDURAL BACKGROUND.¹

On April 16, 2002, Plaintiff was incarcerated at Centinela State Prison. On April 16, 2002, Plaintiff claims that Correctional Officer Angulo violated his constitutional rights "when he engaged in unlawful sexual misconduct and harassment when he attempted to solicit sexual favors from Plaintiff in return for special consideration of the scheduling of a Biannual Hearing and by gropping (sic.) his genitals in front of me while stating he could `hook me up.'" (First Amended Complaint at 9). Specifically, Plaintiff alleges that, after he obtained permission to enter Defendant Angulo's office, he asked Defendant Angulo about a possible Biannual Hearing so that Plaintiff could petition for transfer. Id. Plaintiff then asked Defendant Angulo if he could "hook him up", allegedly referencing the hearing. Id. Defendant Angulo then began to "grab and fondle his genital area while stating `Yeah I'll hook you up.'" Id. Plaintiff understood this action by the Defendant to be a sexual overture by Defendant Angulo, "proposing a sexual act in return for a favorable biannual hearing." Id.

On August 21, 2003, Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983. The Court granted Plaintiff leave to proceed in forma pauperis, and simultaneously screened the Complaint in order to make a preliminary determination as to whether the Complaint required sua sponte dismissal on grounds that it was frivolous, malicious, failed to state a claim, or sought monetary damages against defendants who were immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.2000) (en banc) (§ 1915A). Finding sua sponte dismissal of the Complaint appropriate, the Court dismissed the Complaint without prejudice for failing to state a claim upon which relief could be granted under 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1).

On November 17, 2003, Plaintiff filed his First Amended Complaint. On December 22, 2003, the Court directed the U.S. Marshal to effect service.

On March 15, 2004, Defendants Angulo, Giurbino, Stokes, Hudson, Garcia, and Trout moved to dismiss under FED.R.CIV.P. 12(b) and FED.R.CIV.P. 12(b)(6). Plaintiff filed his Opposition on April 27, 2004, and Defendants filed their Reply on May 4, 2004. On June 29, 2004, Judge McCurine issued his Report and Recommendation on Defendants' Motion. Plaintiff filed his objections on July 30, 2004 and Defendants filed their Reply on August 12, 2004.

III.

STANDARD OF REVIEW.

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.

IV.

PLAINTIFF HAS FAILED TO FULLY EXHAUST HIS ADMINISTRATIVE REMEDIES.

Defendants Giurbino, Stokes, Hudson, Garcia and Trout claim, as to them, Plaintiff has failed to exhaust his administrative remedies as required under 42 U.S.C. § 1997e(a). The Court agrees.

At the outset, Defendants properly move to dismiss under the "non-enumerated" provisions of Fed.R.Civ.P. 12(b). See Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368-69 (9th Cir.1988); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.2003) (finding a non-enumerated motion under Rule 12(b) to be "the proper pretrial motion for establishing nonexhaustion" of administrative remedies under 42 U.S.C. § 1997e(a)). Wyatt holds that non-exhaustion of administrative remedies as set forth in 42 U.S.C. § 1997e(a) is a defense which defendant prison officials have the burden of raising and proving. Wyatt, 315 F.3d at 1117-19. However, unlike under Rule 12(b)(6), "[i]n deciding a motion to dismiss for failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20 (citing Ritza, 837 F.2d at 369).

Turning to the issue of exhaustion, under the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 ... 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). "Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory." Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Plaintiff's available remedies must be exhausted before a complaint under section 1983 may be entertained, "regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).

The State of California provides its prisoners and parolees the right to administratively appeal "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." CAL. CODE REGS., tit. 15 § 3084.1(a). "In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections." Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D.Cal.1997). The third or "Director's Level" of review "shall be final and exhausts all administrative remedies available in the Department [of Corrections.]" See Cal. Dep't of Corrections Operations Manual, § 54100.11, "Levels of Review"; Irvin v. Zamora, 161 F.Supp.2d 1125, 1129 (S.D.Cal.2001).

There is no question that Plaintiff is aware of the exhaustion requirement. Indeed, Plaintiff generally complied with the requirements of Section 3084 and obtained a Director's Level of review. There is adequate evidence that all administrative remedies were exhausted as to the Eighth Amendment claim against Defendant Angulo. Plaintiff submitted a 602 with Log No. CEN 02-0805 detailing the incident and describing the conduct of Defendant Angulo. A Director's Level decision was made regarding this 602 on January 7, 2003. See Mot. to Dismiss Ex. A. However, Defendants were not named in Plaintiff's 602, a form that is required to initiate the appeal process. See Cal. Dep't. of Corrections Operations Manual, § 54100.11. As such, Defendants claim, it is temporally impossible for Plaintiff to have intended grievances against them, as all claims alleged against them occurred after the 602 filing. See Reply at 2.

In opposition, Plaintiff claims that these Defendants were on notice of his 602 and that "the additional filing of separate and successive appeals stemming from the same issue or problem is viewed within the CDC as an abuse of the Appellate system." See Opp'n at 1. However, Judge McCurine found that there is no rule against filing "separate and successive" grievances, and that "abuse of the grievance system consists of `submission of more than one non-emergency appeal within a seven-calendar day period'". See Report and Recommendation at 969.

In finding that Plaintiff has not exhausted administrative remedies as to Giurbino, Stokes, Hudson, Garcia and Trout, Judge McCurine also thoroughly analyzed the applicable authorities. For example, Judge McCurine addressed Irvin v. Zamora, 161 F.Supp.2d 1125, 1130-32 (S.D.Cal.2001). The inmate in Irvin alleged he was exposed to pesticide. Id. at 1133. He "pursued two separate grievances to the Director's Level that revolve around the pesticide incident." Id. The Irvin plaintiff did "not specifically name defendants" that were allegedly involved in the incident "in either of his grievances or in his responses at the various levels of review." Id. at 1134. The Court, however, held that plaintiff's grievances were "sufficient under the circumstances to put the prison on notice of the potential claims and to fulfill the basic purposes of the exhaustion requirement." Id. at 1135. The court specifically found that:

plaintiff's grievances did present the relevant factual circumstances giving rise to a potential claim and did request the identities of the individuals directly responsible for spraying the pesticide. This was sufficient to put prison officials on notice of possible problems with these individuals. Plaintiff also requested that the prison conduct an investigation of the facts. As a result, the facts were...