(PC) Ruiz v. Sadler ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ROGELIO MAY RUIZ, Case No. 2:19-cv-00147-TLN-JDP (PC) 10 Plaintiff, ORDER DENYING APPOINTMENT OF COUNSEL 11 v. ECF No. 31 12 C. SADLER, FINDINGS AND RECOMMENDATIONS 13 Defendant. THAT DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO EXHAUST 14 ADMINISTRATIVE REMEDIES BE GRANTED 15 OBJECTIONS DUE IN 14 DAYS 16 ECF No. 29 17 18 19 Plaintiff Rogelio May Ruiz is a state prisoner proceeding without counsel in this civil 20 rights action brought under 42 U.S.C. § 1983. He claims that another inmate tried to attack him 21 on August 22, 2018. ECF No. 14 at 3. After the attacker was restrained, defendant Sadler 22 allegedly used excessive force against plaintiff, forcing him to the floor and causing injuries to his 23 hand and head. Id. Defendant Sadler has filed a motion to dismiss, arguing that plaintiff’s failure 24 to exhaust administrative remedies is apparent from the face of the complaint. ECF No. 29. 25 Plaintiff has filed an opposition and a request for counsel, ECF No. 31, and defendant Sadler has 26 filed a reply, ECF No. 33. I recommend that defendant Sadler’s motion be granted because the 27 complaint on its face shows that plaintiff did not exhaust his third-level administrative remedies, 28 1 and plaintiff’s arguments for excusing the exhaustion requirement—though perhaps compelling 2 as a matter of equity—lack legal support. 3 Appointment of Counsel 4 Before addressing the motion to dismiss, I consider plaintiff’s request for counsel. He 5 argues that counsel should be appointed because he does not speak fluent English and cannot 6 understand legal rules or terms. ECF No. 31 at 1. I am sympathetic to the difficulty pro se 7 prisoners face in litigating their cases, especially those with limited English comprehension. But 8 plaintiff does not have a constitutional right to appointed counsel, see Rand v. Rowland, 113 F.3d 9 1520, 1525 (9th Cir. 1997), and I lack the authority to require an attorney to represent plaintiff. 10 See Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). I 11 could request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may 12 request an attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. 13 However, without a means to compensate counsel, I will seek volunteer counsel only in 14 exceptional circumstances. In assessing whether such circumstances exist, “[I] must evaluate 15 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 16 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 17 (internal quotation marks and citations omitted). Here, considering plaintiff’s failure to exhaust 18 administrative remedies, I cannot conclude that he is likely to succeed. 19 Motion to Dismiss 20 A motion to dismiss brought under Rule 12(b)(6) tests the legal sufficiency of a claim, and 21 granting the motion is proper if there is no cognizable legal theory of liability or if insufficient 22 facts are alleged to support a cognizable theory. See Conservation Force v. Salazar, 646 F.3d 23 1240, 1241-42 (9th Cir. 2011). A court’s review is generally limited to the operative pleading. 24 See Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). A pleading is 25 sufficient under Rule 8(a)(2) if it contains “a short and plain statement of the claim showing that 26 the pleader is entitled to relief” that gives “the defendant fair notice of what the . . . claim is and 27 the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 28 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Additionally, a court must construe a pro se 1 litigant’s complaint liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), and 2 may only dismiss such a complaint “if it appears beyond doubt that the plaintiff can prove no set 3 of facts in support of his claim which would entitle him to relief,” Hayes v. Idaho Corr. Ctr., 849 4 F.3d 1204, 1208 (9th Cir. 2017) (quoting Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)). 5 A defendant may raise the issue of administrative exhaustion in cases where failure to 6 exhaust is obvious from the face of the complaint. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 7 2014) (en banc). Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought 8 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 9 prisoner confined in any jail, prison, or other correctional facility until such administrative 10 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This statutory exhaustion 11 requirement “applies to all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532 12 (2002), regardless of the relief sought by the prisoner or the relief offered by the process, Booth v. 13 Churner, 532 U.S. 731, 741 (2001). Unexhausted claims must be dismissed. See Jones v. Bock, 14 549 U.S. 199, 211 (2007). A prison’s own grievance process, not the PLRA, determines how 15 detailed a grievance must be to satisfy the PLRA exhaustion requirement. Id. at 218. The 16 administrative remedy process of the California Department of Corrections and Rehabilitation 17 (“CDCR”) is applicable here. See Cal. Code of Regs. tit. 15, § 3084 (2019).1 To exhaust 18 available remedies during the relevant time period, an inmate must proceed through three formal 19 levels of review unless otherwise excused under the regulations. Id. § 3084.1(b). Cancellation or 20 rejection of a grievance does not exhaust administrative remedies. Id. 21 Plaintiff attached his grievances to the operative complaint, ECF No. 14, showing that he 22 exhausted the first two levels of review. Id. at 7-10, 12-13. His grievance was rejected at the 23 third level of review for failure to include a “CDCR Form 1858, Rights and Responsibilities 24 Statement.” Id. at 26. The rejection informed plaintiff that he could correct the problem and 25 resubmit his grievance. Id. It also stated that, if he did not take timely corrective action, his 26 27 1 As of June 2020, the CDCR administrative appeal regulations have been repealed and replaced. ECF No. 29-1 at 5 n.5. The newer regulations do not govern exhaustion in this action, 28 however. 1 grievance would be cancelled, and a separate grievance could be filed on the cancellation 2 decision. Id. In his opposition, plaintiff concedes that he did not resubmit his rejected grievance 3 or appeal a cancelled grievance. ECF No. 31 at 2. He raises three arguments as to why his failure 4 to exhaust third level administrative remedies should be excused. None find traction in the law. 5 First, plaintiff argues that he did not understand the third level rejection notice because of 6 his limited English. Id. In Ross v. Blake, the Supreme Court held that “the PLRA’s text suggests 7 no limits on an inmate’s obligation to exhaust—irrespective of any ‘special circumstances.’” 8 136 S. Ct. 1850, 1856 (2016). Another court in this district recently held that, under Ross, an 9 inmate who was unable to read or write was not excused of his obligations to exhaust. Ramirez v. 10 Rose, No. 2:19-cv-0827-KJN-P, 2020 U.S. Dist. LEXIS 68196, * 16 (E.D. Cal. Mar.4, 2020), 11 adopted at 2020 U.S. Dist. LEXIS 68142 (E.D. Cal., Apr. 16, 2020) (“The undersigned is 12 sympathetic to plaintiff’s learning and reading disability and mental health needs. However, 13 plaintiff cites no legal authority demonstrating that such conditions, standing alone, render 14 administrative remedies unavailable, and this court has not found any.”). Harsh though it may be, 15 Ross leaves the court little flexibility: “mandatory exhaustion statutes like the PLRA establish 16 mandatory exhaustion regimes, foreclosing judicial discretion.” 136 S. Ct. at 1857. 17 Second, plaintiff argues that he exhausted his administrative remedies because his 18 grievance was partially granted at the second level. ECF No. 31 at 2-3. The CDCR regulations 19 require third-level exhaustion, however, and it is those regulations that define exhaustion 20 requirements for the PLRA. Jones, 549 U.S. at 218. 21 Third, plaintiff argues that he exhausted because he submitted his grievance, and no other 22 “proof” from a prison or hospital existed. ECF No. 31 at 3. His third-level grievance was not 23 rejected because it lacked “proof,” however, but because he did not submit a “Rights and 24 Responsibilities Statement.” Plaintiff does not dispute that he failed to submit such a statement. 25 Defendant Sadler’s motion should be granted because, on the face of the complaint, 26 plaintiff did not exhaust his administrative remedies as required by the CDCR regulations. 27 It is ORDERED that plaintiff’s request for appointment of counsel (ECF No. 31) be 28 DENIED. 1 Further, it is RECOMMENDED that defendant’s motion to dismiss (ECF No. 29) be 2 | GRANTED and plaintiff's claims against him be dismissed without prejudice. 3 I submit these findings and recommendations to the district judge under 28 U.S.C. 4 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 5 | Eastern District of California. Within 14 days of the service of the findings and 6 || recommendations, the parties may file written objections to the findings and recommendations 7 | with the court and serve a copy on all parties. That document should be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 9 | and recommendations under 28 U.S.C. § 636(b)(1)(C). 10 | Tr Is SO ORDERED. 11 12 | Dated: _ January 11,2021 _ pene Wns JEREMY D. PETERSON 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28