No. 2: 11-cv-2959 LKK KJN P
ORDER AND FINDINGS AND
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is the motion to dismiss filed August 26, 2013, pursuant to Federal Rule of Civil Procedure 12(b) and (b)(6), on behalf of defendants Miranda, Abshire, Alziebler, Hernandez and Pagala. (ECF No. 66.) Defendants argue that plaintiff failed to exhaust administrative remedies as to his federal claims. Defendants also move to dismiss plaintiff's federal and state law claims on various other grounds. After carefully considering the record, the undersigned recommends that defendants' motion be granted.
The court ordered service of four other defendants: Hart, Munoz, Montenez and Rogel. The motion to dismiss is not made on behalf of these other four defendants.
In his 36 page opposition to the pending motion, plaintiff alleges that he could not prepare an adequate opposition because he was being denied access to legal supplies, paper, envelope, pens, and a computer to do legal research. (ECF No. 79 at 3.) Plaintiff states that for this reason, he "reserves the right" to file a supplemental opposition. (Id.) On November 22, 2013, plaintiff filed a 37 page supplemental opposition and motion for leave to file the supplemental opposition. (ECF No. 85.)
Plaintiff's original opposition contains numerous citations to legal authority. For this reason, the undersigned does not find that plaintiff's alleged inability to conduct legal research on a computer hindered his ability to prepare his opposition. Because plaintiff was able to prepare a lengthy and complete opposition, the undersigned further finds that his ability to prepare his opposition was not hindered by his alleged inability to access legal supplies, paper, envelopes and pens. Plaintiff's supplemental opposition does not contain any information that was unavailable to plaintiff when he filed his original opposition. The supplemental opposition appears to be further argument by plaintiff that could have been made in the original opposition.
The undersigned has spent considerable time evaluating the pending motion, including plaintiff's original opposition. For these reasons, plaintiff's motion for leave to file a supplemental opposition is denied.
In an abundance of caution, the court has reviewed plaintiff's supplemental opposition and finds that it does not change the court's analysis of defendants' motion to dismiss.
This action is proceeding on the third amended complaint filed January 9, 2013, as to the following claims which allegedly occurred at Mule Creek State Prison ("MCSP"): 1) on December 3, 2006, defendant Hart discussed plaintiff's sexual orientation with inmate Calderon; 2) defendant Munoz failed to investigate defendant Hart's alleged misconduct; 3) on December 15, 2006, defendant Abshire told inmate Silva that plaintiff was a sexual predator and single celled for homosexual tendencies; 4) on December 18, 2006, defendant Miranda told inmate Silva that plaintiff was the "new gay"; 5) on or around December 18, 2006, defendant Alziebler called plaintiff a child molester and encouraged inmate Silva to tell his homies about plaintiff; defendant Alziebler later showed inmates Calderon and Silva plaintiff's classification chrono stating that plaintiff was a sexually violent predator; 6) defendant Hernandez offered inmate Silva three extra lunches if he would tell other inmates that plaintiff was a snitch, etc., 7) on or around December 20, 2006, defendant Miranda told inmates that plaintiff was gay; 8) on or around December 6, 2006, defendant Hart told inmate Silva that plaintiff was gay; 9) defendant Montenez encouraged inmate Silva to assault plaintiff for being a snitch; 10) defendant Rogel denied plaintiff's grievance alleging that the other defendants were telling inmates that plaintiff was gay, etc., 11) on or around January 6, 2007, defendant Hernandez told inmates they should not talk to plaintiff because he is a child molester and a snitch; 12) on or around January 7, 2007, defendant Hernandez showed inmate Silva a photograph allegedly of plaintiff and his boyfriend; 13) defendant Pagala gave plaintiff's mail to another inmate; 14) on January 30, 2007, defendant Abshire encouraged an inmate to attack plaintiff; and 15) on February 2, 2007, defendant Hernandez told inmate Calderon that there was more homosexual information about plaintiff. (ECF No. 40.)
The court limited plaintiff to a thirty page amended complaint. On April 23, 2013, the court issued a 26 page order screening plaintiff's third amended complaint. (ECF No. 42.) The court ordered service of the 15 claims listed above. In his opposition, plaintiff objects to the court's order limiting the number of pages of his third amended complaint and to the court's order serving only 15 of his claims. These issues are not relevant to the pending motion.
Motion to Dismiss For Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide 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). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734. The fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records).
However, a prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Brown, 422 F.3d at 936-37.
As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84.
The State of California provides its prisoners the right to appeal administratively "any departmental decision, action, condition or policy which they can demonstrate as having an adverse effect upon their welfare." Cal.Code Regs. tit. 15, § 3084.1(a) (2010). It also provides them the right to file appeals alleging misconduct by correctional officers and officials. Id. at § 3084 .1(e). 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 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 and Rehabilitation. Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D.Cal. 1997) (citing Cal.Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.
Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court may look beyond the pleadings to determine whether a plaintiff exhausted his administrative remedies. Id. at 1119-20.
Although exhaustion is mandatory, an inmate must only exhaust administrative remedies "as are available." 42 U.S.C. § 1997e(a). Under the Ninth Circuit law, exhaustion is excused when improper screening of grievances occurs. Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (citing Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)). Sapp establishes that "improper screening of an inmate's administrative grievances renders administrative remedies 'effectively unavailable' such that exhaustion is not required under [§ 1997e(a) ]." Id. at 823. If prison officials screen out an inmate's grievances or appeals for improper reasons, the inmate cannot pursue the necessary administrative process, and, consequently, his administrative remedies become "unavailable." Id.
Defendants argue that plaintiff failed to exhaust his administrative remedies. Defendants first claim that the exhibits attached to the third amended complaint do not demonstrate that plaintiff exhausted his administrative remedies, as claimed by plaintiff.
Attached as exhibits to the third amended complaint are a large number of administrative grievances filed by plaintiff. After reviewing these exhibits, the undersigned finds that they do not demonstrate that plaintiff exhausted his administrative remedies as to any of the claims against defendants Miranda, Abshire, Alziebeler, Hernandez and Pagala. (See ECF Nos. 40-1 at 1-88; 40-2 at 1-48; 40-3 at 1-79.) The undersigned herein summarizes the grievances attached to the third amended complaint.
Plaintiff's exhibit 1 (ECF No. 40-1 at 1-7) appears to include two grievances filed by plaintiff at the first level on December 25, 2006. (Id. at 2.) Plaintiff complained that staff were labeling him as homosexual. (Id. at 5.) Plaintiff appealed the response of one of these grievances to the first formal level of review. (Id. at 5.) There is no evidence that these grievances were exhausted at the final level of review.
Plaintiff's exhibit 2 (ECF No. 40-1 at 8-20) includes documents pertaining to an inmate complaint filed by plaintiff on February 20, 2011, complaining that guards at Pelican Bay State Prison secretly recorded plaintiff. (ECF No. 40-1 at 12.) This complaint was cancelled as untimely on March 8, 2011. (Id. at 19.)
Plaintiff's exhibit 3 (ECF 40-1 at 21-50) includes documents pertaining to a grievance filed by plaintiff on February 28, 2011, alleging that on October 27, 2005, Correctional Officer Sauceda conducted a body cavity search. (ECF No. 40-1 at 26.) This appeal was screened out as untimely. (Id. at 25.)
Plaintiff's exhibit 4 (ECF No. 40-1 at 51-88) includes documents regarding plaintiff's appeal no. MCSP 07-328. In this appeal, originally filed on or around January 16, 2007, plaintiff claimed that Medical Technical Assistant Hart made false claims that plaintiff was a threat to her. (ECF No. 40-1 at 78, 85.) Plaintiff also alleged that E. Sauceda falsified a legal document to label plaintiff as a homosexual in order to inflict harm on plaintiff. (Id.)
Plaintiff's Exhibit 5 (ECF No. 40-2 at 18-37) includes documents regarding plaintiff's appeal no. MCSP-C-07-0042. In this grievance, originally filed on February 9, 2007, plaintiff claimed that prison guards in administrative segregation, including defendants Hernandez, Alziebler, Abshire and Pagala, gave letters he received from family, friends and girlfriends to prison gang members so that the gang members could murder and assault his family, friends and girlfriends. (ECF No. 40-2 at 27, 31.) This appeal was granted in part at the second level of review on June 12, 2007. (Id. at 31-34.) There is no evidence that plaintiff requested a Director's Level Review of this grievance.
Plaintiff's Exhibit 6 (ECF No. 40-2 at 38-48, 40-3 at 1-17) began with an inmate complaint dated August 4, 2011, alleging that prison staff leaked harmful documents deemed confidential. (ECF No. 40-2 at 40.) On August 24, 2011, this appeal was cancelled as untimely. (Id. at 39.)
Plaintiff's Exhibit 7 (ECF No. 40-3 at 18-38) includes documents related to a grievance filed by plaintiff on December 30, 2010, complaining that prison staff had repeatedly broadcast "sexually explicit and highly invasive material" regarding plaintiff. (ECF No. 40-3 at 19.) On January 6, 2011, this grievance was returned to plaintiff on grounds that it was duplicative of another appeal. (Id. at 26.)
Plaintiff's exhibit 8 (ECF No. 40-3 at 39-45) includes documents related to an inmate complaint filed by plaintiff on March 7, 2011, alleging sexual harassment by prison staff. (ECF No. 40-3 at 40.) This appeal was cancelled, although the grounds of the cancellation are unclear. (Id.)
Plaintiff's Exhibit 9 (ECF No. 40-3 at 47-53) includes documents related to an inmate complaint filed by plaintiff on May 14, 2011, complaining about retaliation and sexual discrimination. (ECF No. 40-3 at 48.) This appeal was screened out as untimely. (Id. at 53.)
Plaintiff's Exhibit 11 (ECF No. 40-3 at 61-79) includes documents regarding plaintiff's appeal no. MCSP-C-07-0628. In the first level grievance, signed by plaintiff on March 5, 2007, plaintiff alleged sexual misconduct by prison staff. (ECF No. 40-3 at 63.) On June 15, 2007, the second level appeal was denied. (Id. at 67-68.) This response stated that plaintiff was complaining that Medical Technical Assistant Miranda accessed his medical records and made copies of obscene materials, which he gave to another inmate. (Id. at 67.) Attached to exhibit 11 is a copy of the memorandum to plaintiff returning his Director Level Appeal for grievance MCSP 07-0328 as untimely. (Id. at 62.) Plaintiff submitted no documents demonstrating that he filed a Director's Level appeal regarding appeal MCSP 07-0628.
In summary, the administrative grievances attached as exhibits to plaintiff's third amended complaint do not demonstrate administrative exhaustion of any of the claims against defendants Miranda, Abshire, Hernandez and Pagala.
In support of the motion to dismiss, defendants next refer to the declaration of M. Elorza, the appeals coordinator at MCSP, where the alleged deprivations occurred. (ECF No. 66-2.) M. Elorza states that between December 3, 2006, and December 7, 2011, plaintiff submitted seventeen non-medical appeals which were accepted for formal review at MCSP. (Id. at 2.) M. Elorza's declaration contains a chart of these appeals, including the log number, date received, personnel involved, the issue and the disposition. (Id. at 2-4.) After reviewing the chart, the undersigned finds that none of the grievances cited in the chart demonstrate exhaustion of the claims against defendants Miranda, Abshire, Alziebler, Hernandez and Pagala. The undersigned summarizes the chart herein.
In the chart, M. Elorza identifies grievance MCSP-C-07-00328, included in plaintiff's exhibit 4. M. Elorza confirms that this grievance was received on February 14, 2007, and denied at the second level of review, and not pursued to the Director's Level. (ECF No. 66-2 at 2.)
In the chart, M. Elorza identifies grievance no. MCSP-C-07-0042, included in plaintiff's exhibit 5. M. Elorza confirms that this grievance was granted in part at the second level of review and not pursued to the Director's Level. (Id.)
In the chart, M. Elorza identifies grievance no. MCSP-C-07-0628, referred to in plaintiff's exhibit 11. M. Elorza states that this grievance was denied at the second level of review. (Id.)
The chart contained in M. Elorza's declaration goes on to describe the 14 other non-medical grievances submitted by plaintiff during the relevant time period: 1) MCSP-07-916 received April 18, 2007, alleging that Hernandez sexually harassed plaintiff by winking at him; denied at first level of review on June 8, 2007; 2) MCSP C-07-0940 received April 23, 2007, alleging mail tampering by Ziebert, Abshire and Hernandez; granted in part at second level of review on July 30, 2007; 3) MCSP C-07-1098 received May 1, 2007, alleging that Rutherford conducted an inadequate investigation of appeal no. MCSP C-07-238; denied on June 12, 2007; 4) MCSP C-07-1200, received on May 18, 2007, alleging that Hernandez and Sauceda labeled plaintiff as a homosexual, etc;, granted in part at first level of review on June 14, 2007; 5) MCSP C-07-1588, received on July 3, 2007, alleging that Pagala sexually harassed plaintiff; granted in part at first level of review on July 23, 2007; 6) MCSP C-07-1731, received July 5, 2007, alleging that Cherry conducted an incomplete investigation of MCSP C-07-6278; denied at second level of review on August 16, 2007; 7) MCSP C-07-2695, received October 13, 2007, alleging that Sauceda, Pagala, Abshire, Dixon, Pollard, Rutherford, Kawalcheck, Hernandez, Dion, Rogel, Subia and Reyes solicited rape, mail theft, etc.; granted in part at the first level of review on November 30, 2007; 8) MCSP-C-08-1340, received May 23, 2008, alleging that Dixon and Farmer placed plaintiff's breakfast on a paper tray; granted in part on June 4, 2008; 9) MCSP C-08-1930, received on July 28, 2008, alleging that Sisneros and Sutterland damaged personal property; granted in part at second level of review on October 15, 2008; 10) MCSP C-08-2108, received August 18, 2008, alleging that Farmer denied plaintiff due process at a disciplinary hearing; denied at second level of review on September 23, 2008; 11) MCSP C-08-2183, received on August 26, 2008, challenging confiscation of Maxim magazine; granted in part at first level of review; 12) MCSP-C-08-2464, received October 7, 2008, alleging that Sutterland confiscated personal property; granted in part at first level of review on November 18, 2008; 13) MCSP-C-08-2521, received October 17, 2008, alleging damage of personal property; granted in part at first level of review on November 5, 2008; 14) MCSP-C-08-2525, received October 17, 2008, alleging damage to personal property; granted in part at first level on November 5, 2008. (ECF No. 66-2 at 4-5).
The undersigned finds that the chart in M. Elorza's declaration demonstrates that none of the non-medical administrative appeals submitted by plaintiff during the relevant time period administratively exhausted the claims made against defendants Miranda, Abshire, Alziebler, Hernandez and Pagala.
Defendants also refer to the declaration of J.D. Lozano, the Chief of the Office of Appeals for the California Department of Corrections and Rehabilitation ("CDCR"). (ECF No. 66-3.) J.D. Lozano states that the Office of Inmate Appeals tracking system discloses that between December 3, 2006, and November 2, 2011, plaintiff submitted sixteen appeals to the Office of Inmate Appeals. (Id. at 2.) Of these appeals, four were accepted and one pertained to an incident which occurred at MCSP. (Id.) This appeal, which was formally denied at the Third Level of Review, originated from an event involving plaintiff's personal property which was first screened out on October 26, 2006, for missing time constraints. (Id.) J.D. Lozano's declaration also demonstrates that the claims made against defendants Miranda, Abshire, Alziebler, Hernandez and Pagala are not administratively exhausted.
In his opposition to defendants' motion, plaintiff argues that his failure to exhaust his administrative remedies should be excused on several grounds. The undersigned addresses these arguments herein.
First, plaintiff argues that his ability to exhaust administrative remedies was blocked by defendants' misconduct, threats, soliciting rape and violence and retaliation. (ECF No. 79 at 1, 6.) Plaintiff argues that he filed untimely grievances because of defendants' misconduct and, for this reason, the untimeliness of his grievances should have been excused. (Id. at 8.)
"[T]he PLRA ... does not require exhaustion when circumstances render administrative remedies 'effectively unavailable.'" Sapp, 623 F.3d at 822 (citation omitted). The Ninth Circuit has acknowledged that other circuits have held that threats of retaliation for filing a grievance excuse exhaustion. Albino v. Baca, 697 F.3d 1023, 1034 n.7 (9th Cir. 2012) (citing Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008); Macias v. Zenk, 495 F.3d 37, 45 (2d Cir. 2007); Kaba v. Stepp, 458 F.3d 678, 685-86 (7th Cir. 2006).)
As observed by defendants in their reply, plaintiff's argument that he did not pursue his administrative remedies because he was threatened with retaliation is undermined by his filing of seventeen administrative appeals between January 2007 and October 2008. Several of these grievances named defendants and alleged sexual harassment. For example, in January 2007, plaintiff filed a grievance alleging that defendant Hart made false claims against him. (ECF No. 40-1 at 51-88). On or around February 9, 2007, plaintiff filed a grievance alleging that defendants Hernandez, Alziebler, Abshire and Pagala gave his mail to gang members so that they would assault plaintiff's family, friends and girlfriend. On or around March 5, 2007, plaintiff submitted a grievance alleging that defendant Miranda made copies of his records and gave them to another inmate. Plaintiff pursued these grievances to the second level of review. The alleged threats of retaliation did not prevent plaintiff from filing and pursuing these administrative grievances. For these reasons, the undersigned finds that plaintiff has not demonstrated that threats of retaliation prevented him from exhausting his administrative remedies.
Plaintiff next alleges that defendants routinely disseminated false information about plaintiff to other inmates and solicited other inmates to harm plaintiff. (ECF No. 79 at 5.) Plaintiff alleges that because these inmates were threatened by defendants if they disclosed the solicitations to plaintiff, he did not know about their existence until years later. (Id.) As indicated above, plaintiff filed several administrative appeals alleging that defendants disclosed confidential information regarding him to other inmates. Some of these grievances were addressed on the merits and others were denied as untimely. In other words, plaintiff was able to file some timely grievances alleging that staff gave false information regarding plaintiff to other inmates. For this reason, plaintiff's conclusory and unsubstantiated claim that he could not exhaust some of his claims earlier because he only recently discovered their grounds due to witness intimidation is not well supported.
Plaintiff next argues that he could not exhaust his administrative remedies because he was transferred to High Desert State Prison ("HDSP") in December 2008. (Id. at 6.) Plaintiff alleges that when he transferred to HDSP, he remained in a state of fear that he would be retaliated against for exhausting his claims. (Id.) Other than this conclusory allegation, plaintiff offers no specific allegations to support this claim. As indicated above, plaintiff submitted administrative grievances regarding the claims on which this action is proceeding at MCSP, prior to his transfer to HDSP. For these reasons, the undersigned finds that plaintiff's transfer to HDSP did not excuse his failure to administratively exhaust his claims.
Finally, plaintiff suggests that he could not exhaust his administrative remedies because he was placed in administrative segregation. (Id. at 6.) In support of this argument, plaintiff refers to exhibit 20 attached to the opposition. Exhibit 20 is an order dated May 30, 2013, for plaintiff's placement in ad seg. (Id. at 28.) Plaintiff's placement in ad seg in 2013 did not prevent plaintiff from exhausting his claims.
For the reasons discussed above, the undersigned finds that plaintiff failed to exhaust his administrative remedies. Defendants' motion to dismiss on this ground should be granted.
Motion to Dismiss for Failure to State A Claim
Legal Standard for Motion to Dismiss Pursuant to Federal Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Remaining Arguments Regarding Federal Claims
Plaintiff had four years from the date his claims accrued to file this action. See Cal. Civ. Proc. Code § 335.1 (the statute of limitations for a personal injury action is two years from the date of accrual); Martinez v. Gomez, 137 F.3d 1124, 1125-26 (9th Cir. 1998) (per curiam) (prisoner serving life sentence with the possibility of parole is entitled to tolling of two years pursuant to California Code of Civil Procedure§ 352.1). The limitation period is also tolled while an inmate is exhausting administrative remedies as required by 42 U.S.C. § 1997e(a). See Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005).
Plaintiff's original complaint is court file stamped November 7, 2011. (ECF 1.) It is difficult to determine the date the complaint was filed pursuant to the mailbox rule as the proof of service states that it was mailed in October 2011 but contains no date. In the motion to dismiss, defendants state that plaintiff's last administrative appeal regarding the claims raised in this action, i.e. MCSPC072695, was submitted on October 13, 2007. Defendants contend that plaintiff abandoned his efforts to exhaust his administrative remedy and did not seek further review of this appeal. Defendants argue that the instant action was filed more than four years after October 2007.
According to M. Elorza's declaration, appeal No. MCSPC072695 was granted in part at the first level of review on November 30, 2007. Arguably, the statute of limitations ran from November 30, 2007, which would render the instant action timely. Moreover, an inquiry into the date plaintiff filed this action pursuant to the mailbox rule may also render this action timely. However, the undersigned need not reach these issues because plaintiff's claims are not administratively exhausted.
Defendants argue that plaintiff's claims against them in their official capacity should be dismissed. Defendants correctly argue that the Eleventh Amendment bars any claims for damages brought against them in their official capacity. See Henry v. County of Shasta, 132 F.3d 512, 517 (9th Cir. 1997); Regents of the University of California v. Doe, 519 U.S. 425, 429 (1977).
In his opposition, plaintiff correctly states that he may proceed against defendants in their official capacity to the extent he seeks injunctive relief against them. See Doe v. Lawrence Livermore Nat'l Lab, 131 F.3d 836, 839 (9th Cir. 1997).
In their reply, defendants argue that plaintiff's request for injunctive relief is moot as he has now been transferred to California State Prison-Corcoran. On June 5, 2013, plaintiff filed a notice of change of address reflecting his new housing location.
When an inmate seeks injunctive or declaratory relief concerning the prison where he is incarcerated, his claims for such relief become moot when he is no longer subjected to those conditions. See Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995); Preiser v. Newkirk, 422 U.S. 395, 402-04 (1975) (inmate's request for declaratory judgment rendered moot by inmate's transfer to another prison); Edmundson v. MacDonald, 415 Fed. Appx. 838, 838-39 (9th Cir. 2011) (holding that district court properly dismissed prisoner's claims for declaratory relief and injunctive relief as moot because the prisoner no longer was housed in the prison where the allegedly unconstitutional events took place). Plaintiff has not shown that there is a likelihood that he will be returned to MCSP and subject to the alleged deprivations again. Spencer v. Kemna, 523 U.S. 1, 17 (1998).
Because plaintiff is no longer housed at MCSP, where the alleged deprivations occurred, his claims for injunctive relief are moot. Accordingly, for the reasons discussed above, defendants' motion to dismiss the claims made against them in their official capacity should be granted.
State Law Claims: Alleged Failure to Comply with California Claims Act
Plaintiff alleges violations of state law, including violations of the Unruh Act, invasion of privacy, sexual harassment, libel, slander and defamation. Defendants argue that plaintiff is barred from pursuing his state law claims because he filed this action more than six months after his claims were rejected by the California Victim Compensation and Government Claims Board, as required by California law.
In his opposition, plaintiff states that he cannot adequately oppose defendants' motion to dismiss regarding his filing of government claims because he does not have access to his legal property containing the claim records. (ECF No. 79 at 6.) However, the undersigned notes that plaintiff's supplemental opposition does not include any exhibits regarding this issue. In his supplemental opposition, plaintiff does not claim that he does not have access to documents regarding this claim. (ECF No. 85 at 19.) Accordingly, the undersigned addresses the merits of this claim because plaintiff has had an adequate opportunity to file briefing in support of his opposition.
California's Tort Claims Act requires that a tort claim against a public entity or its employees be presented to the California Victim Compensation and Government Claims Board ("Claims Board") no more than six months after the cause of action accrues. Cal. Gov't. Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. Presentation of a written claim and action on or rejection of the claim are conditions precedent to suit, Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 208-09 (Cal. 2007); State v. Superior Court of Kings Cnty., 32 Cal.4th 1234, 1239 (Cal. 2004); Mabe v. San Bernardino Cnty. Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001), and suit must be commenced not later than six months after the date the rejection is deposited in the mail. Cal. Gov't Code § 945.6(a)(1). Where compliance with the California Tort Claims Act is required, the plaintiff has the burden of pleading and proving compliance with the California Government Claims Act. Mangold v. California Pub. Utils. Comm'n., 67 F.3d 1470, 1477 (9th Cir. 1995). In addition, Unruh Act causes of action are subject to the Tort Claims Act presentment requirements. K.S. v. Fremont Unified Schl. Dist., 2007 WL 4287522, * 4 (N.D. Cal. 2007) (citing Gates v. Sup. Ct., 32 Cal.App.4th 481, 508 (1995).)
Defendants argue that plaintiff did not file this action within six months of the rejection of his claims by the California Victim Compensation and Government Claims Board. In support of this argument, defendants rely on the declaration of E. Rivera, custodian of records for the Victim Compensation and Government Claims Board, attached to the motion to dismiss. (ECF No. 66-4.) In the declaration, E. Rivera states that a diligent search of the records maintained by the Government Claims Program indicates that plaintiff submitted three claims. (Id.) E. Rivera goes on to discuss when the responses to the claims were sent to plaintiff.
Plaintiff submitted claim G568139 alleging sexual harassment, slander, assaults, etc. by staff at MCSP on June 5, 2007. (ECF 66-4 at 6-7.) On August 28, 2007, the Victim Compensation and Government Claims Board sent plaintiff a letter stating that the Board denied claim G568139 on August 23, 2007. (Id. at 13.)
On June 16, 2008, plaintiff submitted claim G575907 alleging sexual abuse, etc. at MCSP. (Id. at 15-16.) On August 29, 2008, the Victim Compensation and Government Claims Board sent plaintiff a letter stating that the Board denied his claim on August 21, 2008. (Id. at 51.)
Plaintiff submitted a third claim to the Board, claim G566708 on or around March 21, 2007. (Id. at 53.) On May 25, 2007, the Victim Compensation and Government Claims Board sent plaintiff a letter stating that the Board denied his claim on May 22, 2007. (Id. at 55.) In his declaration, E. Rivera states that this claim, any amendment to the claim and all notices or correspondences from this claim are no longer available as the claim as been misplaced. (ECF No. 66-4 at 2.)
"In ruling on a motion to dismiss [pursuant to Federal Rule of Civil Procedure 12(b)(6)], a district court generally 'may not consider any material beyond the pleadings.'" Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998) (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)). However, in ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court may take judicial notice of "matters of public record" pursuant to Federal Rule of Evidence 201. Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Therefore, the court may take judicial notice of the documents attached to E. Rivera's declaration as they are matters of public record.
In contrast, in deciding a motion to dismiss for failure to exhaust administrative remedies, a court may "look beyond the pleadings and decide disputed issues of fact." Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003).
Plaintiff has not met his burden of demonstrating that he filed this action within six months of the denial of any relevant claim by the Victim Compensation and Government Claims Board. Plaintiff did not file this action within six months of the denial of the claims attached to E. Rivera's declaration. The fact that plaintiff is imprisoned does not toll the statute of limitations for commending a government tort claim action. Cal. Code Civ. P. § 352.1(b); Moore v. Twomey, 120 Cal.App.4th 910, 914 (2004). For these reasons, plaintiff's state law claims should be dismissed.
Failure to State a Claim
Defendants move to dismiss plaintiff's Unruh Act claims on grounds that they are not liable under this act. The Unruh Civil Rights Act entitles individuals to "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal. Civ. Code § 51(b). Prisons are not business establishments under the Unruh Act. See Taormina v. Cal. Dept. of Corrections, 946 F.Supp. 829, 834 (S.D.Cal. 1996); Wilkins-Jones v. County of Alameda, 2010 WL 4780291 at * 9 (N.D.Cal. Nov. 16, 2010). For this reason, the Unruh Act does not apply to defendants. Accordingly, defendants' motion to dismiss plaintiff's Unruh Act claims should be granted.
Defendants move to dismiss plaintiff's sexual harassment claims on grounds that there is no common law claim for sexual harassment in California. Defendants are correct. See Myers v. Trendwest Resorts, Inc., 148 Cal.App.4th 1403, 1426-27 (2007), citing Medix Ambulance Service, Inc. v. Superior Court, 97 Cal.App.4th 109, 118-19 (2002). Accordingly, defendants' motion to dismiss plaintiff's sexual harassment claims should be granted.
Statute of Limitations
Defendants argue that plaintiff's remaining state law claims for invasion of privacy, defamation, libel and slander are barred by the statute of limitations for these claims set forth in the California Code of Civil Procedure. See Cal. Code Civ. Proc. § 335.1; Cain v. State Farm Mut. Auto. Ins. Co., 62 Cal.App.3d 310, 314 (Cal.App. 1976) (setting forth that § 335.1, formerly codified at § 340, contains statute of limitations for tortious invasion of privacy); Cal. Code Civ. Proc. § 340(c) (statute of limitations for defamation is one year); Cal. Code Civ. Proc. § 340(a) (statute of limitations for libel and slander is one year).
The statute of limitations for claims against the state and its employees is dictated by the six month statute of limitations set for tort claims contained in the California Government Code discussed above. See Ashlee R. ex. rel. Russell v. Oakland Unified School Dist. Financing, 2004 WL 1878214 at * 6 (N.D. Cal. 2004); Doe v. Petaluma City Sch. District, 830 F.Supp. 1560, 1570 (N.D. Cal. 1993); Martell v. Antelope Valley Hosp. Med.Ctr., 67 Cal.App.4th 978, 984 (1988). In other words, the statute of limitations contained in the California Code of Civil Procedure is not applicable to tort claims made against the state and its employees. Therefore, the undersigned need not address defendants' motion to dismiss plaintiff's claims as barred by the statute of limitations contained in the California Code of Civil Procedure.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for leave to file a supplemental opposition to defendants' motion to dismiss (ECF No. 85) is denied;
IT IS HEREBY RECOMMENDED that defendants' motion to dismiss (ECF No. 66) be granted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE