Wright v. Smith

• Decision Date: 18 July 2013
• Docket Number: 1:10-cv-00011-AWI-GSA-PC
• Court: U.S. District Court — Eastern District of California
• Parties: MALCOLM YISRAEL WRIGHT, Plaintiff, v. SMITH, et al., Defendants.

MALCOLM YISRAEL WRIGHT, Plaintiff,

v.SMITH, et al., Defendants.

1:10-cv-00011-AWI-GSA-PC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: July 18, 2013

FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT DEFENDANTS'

MOTION TO DISMISS BE GRANTED IN

PART AND DENIED IN PART

(Doc. 30.)

OBJECTIONS, IF ANY, DUE WITHIN

THIRTY DAYS

I. BACKGROUND

Malcolm Yisrael Wright ("Plaintiff") is an inmate currently in North Carolina state custody at the Central Prison Mental Health Facility in Raleigh, North Carolina. Plaintiff is proceeding pro se and in forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971), based on allegations of events occurring at the United States Penitentiary (USP)-Atwater when Plaintiff was incarcerated there. Plaintiff filed the Complaint commencing this action on January 4, 2010. (Doc. 1.) This case now proceeds with the First Amended Complaint, filed by Plaintiff on January 13, 2011, against defendants Warden Smith and Lieutenant ("Lt.") Gonzales for interference with Plaintiff's incoming mail, in violation of the First Amendment; and against Warden Smith, Lt. Gonzales, and Lt. Miller for violation of his First Amendment rights to exercise his religion.¹ (Doc. 10.)

On December 11, 2012, defendants Smith, Gonzales, and Miller ("Defendants") filed a motion to dismiss the claims from this action for failure to state a claim and/or failure to exhaust administrative remedies. (Doc. 30.) On February 12, 2013, Plaintiff filed an opposition to the motion. (Doc. 34.)² On February 19, 2013, Defendants filed a reply to the opposition. (Doc. 37.) Defendants' motion to dismiss is now before the court.

II. PLAINTIFF'S ALLEGATIONS³

Plaintiff alleges as follows in the First Amended Complaint.

A. Denial of religious meals, prayer items, rabbi, and Jewish materials

Plaintiff arrived at USP-Atwater on May 31, 2007. (First Amended Cmp., Doc. 10 at 9 Plaintiff alleges that he is religiously observant. (Id. at 8 ¶ 6.) Plaintiff alleges that he was deprived of his essential daily prayer items, such as his siddur/prayer book, tallit/prayer shawl, yarmulke/religious head covering, and religious literature including scripture. (Id.) Plaintiff alleges that staff continued to deny him access to his essential daily prayer items, even after the Chaplain notified them that he required them. (Id. at 9 ¶11.) Plaintiff alleges that on June 18, 2007, he was finally taken to inventory and receive his property. (Id. at 10 ¶ 15.) A lot of his property was missing. (Id.) After inventory, staff told Plaintiff he could not have his property, including his required religious items, on the Warden's orders. (Id.) When he asked why not, he was told "Because I say so." (Id.) On February 18, 2008, Plaintiff spoke to M. Chavez, Supervisor of Education, who told Plaintiff that Warden Smith, Lt. Gonzales, and Lt. Miller were the ones who had determined that Plaintiff would not be allowed to receive any of his property as long as he remained at USP-Atwater. (Id. at 24 ¶67.) Plaintiff was transferred from USP-Atwater on April 1, 2008. (Id. at 25 ¶72.)

B. Denial of access to incoming mail

Plaintiff arrived at USP-Atwater on May 31, 2007. (First Amended Cmp., Doc. 10 at 9 ¶11.) In June 2007, Plaintiff sent a request to the mail room inquiring about why he wasn't receiving any of his mail. (Id. at 11 ¶16.)

Defendants Smith and Lt. Gonzales refused to allow inmates on administrative detention/protective custody to receive personal publications. (Id. at 12 ¶23.) On July 18, 2007, Plaintiff received a response to a form BP-8 inmate grievance about not being allowed to receive publications, stating that Warden Smith and Lt. Gonzales had made that rule. (Id. at 14 ¶30.) On or about August 14, 2007, Plaintiff spoke to Lt. Gonzales, to whom he had written several times regarding his publication problems. (Id. at 14 ¶35.) Lt. Gonzales told Plaintiff that he and Warden Smith had made these decisions, that they were not going to change a thing, and that if he didn't like it he could get a lawyer. (Id. at 14 ¶36.) Lt. Gonzales and Warden Smith both told Plaintiff that his publications that were arriving in the mail would be stored in his personal property, but not a single one was, and almost a whole year of Plaintiff's publications disappeared. (Id. at 14-15, ¶36.)

On January 1, 2008, Plaintiff began a hunger strike that lasted three months. (Id. at 23 ¶61.) In February 2008, Plaintiff inquired about why he was not receiving his mail. (Id. at 23 ¶63.) Plaintiff was told that Warden Smith, Lt. Gonzales, and Lt. Miller were the ones who determined that Plaintiff would not be allowed to receive any of his property as long as he remained at USP-Atwater. (Id. at 24 ¶67.) Plaintiff was also told that his mail was being routed to his Unit Team, that this would cause a delay in the receipt of his mail (it had already been delayed two months), but that steps were being undertaken to deliver his mail at the earliest possible opportunity. (Id. at 23-24 ¶65.) However, upon inquiry Plaintiff was informed by his Unit Team that this was not so. (Id. at 24 ¶65.) In nearly three months the Unit Team had only received two pieces of mail. (Id.) Plaintiff found out later that family and friends had been sending a lot of mail, but he never received any of it. (Id.) On April 1, 2008, Plaintiff was transferred from USP-Atwater. (Id. at 25 ¶72.)

III. MOTION TO DISMISS FOR FAILURE TO EXHAUST

A. Statutory Exhaustion Requirement

Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that "[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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).

Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt at 1119 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id. The burden is on defendant to raise and prove the plaintiff's absence of exhaustion of administrative remedies. Id. Defendant has the burden is to show evidence that the plaintiff-prisoner did not complete the process that was available. Id. Because there can be no absence of administrative exhaustion under the PLRA unless some relief remains available, a defendant must demonstrate that pertinent relief remains available. Akhtar v. Mesa, 698 F.3d 1202 (9th Cir. 2012). The burdenthen falls to Plaintiff to show that he completed the process available to him, or that the process was unavailable to him. Albino v. Baca, 697 F.3d 1023 (9th Cir. 2012).

The Court takes judicial notice of the fact that the federal Bureau of Prisons (BOP) has an administrative grievance system for prisoner complaints. 28 C.F.R. §542.10, et seq. The process is initiated by submitting a formal written Administrative Remedy Request on form BP-9. Id. § 542.14. In most cases, inmates are required to complete informal resolution and submit a Request form to the Warden within twenty calendar days of the date on which the basis for the Request occurred. Id. If an inmate is not satisfied with the Warden's response, he or she may submit an Appeal on form BP-10 to the Regional Director within twenty calendar days of the date the Warden signed the response. Id. § 542.15(a). An inmate who is not satisfied with the Regional Director's response may submit an Appeal on form BP-11 to the General Counsel within thirty days of the date the Regional Director signed the response. Id. Appeal to the General Counsel is the final administrative appeal. Id. In order to satisfy § 1997e(a), federal prisoners in the custody of the BOP are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85 (2006); McKinney, 311 F.3d. at 1199-1201.

B. Defendants' Motion

Defendants move to dismiss claims from this action on the ground that Plaintiff failed to exhaust the BOP's administrative appeals process regarding his claims against Defendants. Defendants argue that Plaintiff failed to start or complete the administrative process on his claims of interference with publications, denial of religious meals, access to a contract rabbi, and the availability of Jewish materials in the prison chapel.

Defendants assert that although Plaintiff is not presently a federal inmate, from May 31, 2007 through March 31, 2008, he was housed at USP-Atwater as a state boarder, at which time he was returned to the custody of North Carolina. (Declaration of Shelly Shandor, Doc. 30-2 at 3 ¶5.) Defendants present evidence that while Plaintiff was housed at USP-Atwater, he filed only four...