United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JEREMY SMILEY,

Plaintiff,

v.

R. L. MARTINEZ; et al.,

Defendants. /

No. C 08-2592 SI (pr)

ORDER OF DISMISSAL

INTRODUCTION

Jeremy Smiley, an inmate at Salinas Valley State Prison, filed this pro se civil rights

action under 42 U.S.C. § 1983. Defendants have filed a motion to dismiss in which they argue

that the action must be dismissed because, among other things, Smiley failed to exhaust

administrative remedies before filing the action. Smiley has opposed the motion. The action

will be dismissed because administrative remedies were not exhausted before it was filed. The

court therefore need not reach defendants' other arguments in favor of dismissal. 

BACKGROUND

Smiley alleged in his amended complaint that he was subjected to frightening cell

searches on November 10, 2007 and November 15, 2007, "with negative results." Amended

Complaint p. 5. Smiley allegedly then was put in a strip cell for two days, where he was in leg

irons and waist restraints that precluded effective sleep. He allegedly was not given eating

utensils and had to eat with his hands after defecating and wiping himself. This was a problem

because the toilet and sink allegedly did not work and he had no water to wash his hands before

eating. He alleges that correctional officer Martinez and warden Kane ordered and implemented

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the contraband watch. 

The court found that the amended complaint, liberally construed, stated a cognizable

claim against defendants Martinez and Kane for an Eighth Amendment violation based on their

roles in placing Smiley on contraband watch. Service of process was ordered on them.

Defendants now move to dismiss, arguing that (among other things) dismissal is required

because Smiley did not exhaust administrative remedies before filing this action. 

The parties agree that Smiley tried to submit three inmate appeals regarding the incident.

They disagree as to the order in which the first two of those appeals were submitted. The court

finds Smiley's version to be more plausible and accepts it.

Smiley submitted the first inmate appeal dated November 27, 2007 by putting it in the

inmate mail to the appeals coordinator on November 27, 2007. One of the several stamps on the

form indicates that it was received at some prison office shortly thereafter, as it was stamped

"received Nov 30 2007." (Docket # 11, p. 16.) After receiving no response to that inmate appeal

for 10 days, Smiley thought it had been lost or ignored so he filed a second inmate appeal on

December 13, 2007 by handing it to inmate appeals coordinator Medina. This second inmate

appeal also was dated November 27, 2007 like the first one, although it was not a photocopy of

the first one. When the inmate appeals office received it, the appeal was assigned log # SVSPD-07-05308. (Docket # 11, p. 21.) The appeal was screened out and rejected as untimely on

December 21, 2007. (Docket # 11, p. 20.) Smiley then filed a third inmate appeal dated

December 26, 2007, in which he wrote: "I filed the included Inmate Parolee Appeal to the

appeals office. I was informed that the appeal had been routed back to the yard for informal

level review. That is why I submitted the second 602 personally to Eloy Medina CC-II. The

original was filed on the date denoted on the screened out 602." (Docket # 11, p. 25.) In the

requested relief portion of the third appeal, Smiley wrote: "I request that my appeal be found and

processed in compliance with [15 Cal. Code Regs. 3384.1(a) and (b)]. And a (Log Number)

regarding the (original) appeal." (Docket # 11, p. 25.) The third inmate appeal was screened

out and rejected as duplicative of the issue addressed in inmate appeal log # SVSP-D-07-05308.

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Although the inmate appeal officers' conduct at the time was consistent with the

December 13 appeal being the first received, defendants' account of the events does not

satisfactorily explain how Smiley's inmate appeal dated November 27, 2007 was stamped

"received Nov 30, 2007" if it was not submitted by November 30. 

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(Docket # 11, p. 24.) The first inmate appeal was returned to Smiley with a screening form that

showed that it had been rejected as duplicative of inmate appeal log # SVSP-D-07-05308. There

are several dates on the screening form, including markings indicating that the screening

occurred on December 19, 2007, that the form was stamped "received Jan 4 2008" in some

office, and that it was received on January 7, 2008 by Smiley. 

Defendants contend that the first inmate appeal Smiley submitted was the one that was

hand-delivered to Medina on December 13, 2007 rather than the one Smiley contends he mailed

in on November 27, 2007. Defendants and Smiley agree that the third inmate appeal was the one

concerning the whereabouts of an earlier inmate appeal.

Figuring out the order in which events transpired is difficult because the inmate and

prison officials fill in different parts of the inmate appeal form at different times, and different

authors make various marks (including highlighting, date stamps, and comments in the margins)

on the same document without clearly indicating who made what mark and when he did so.

Nonetheless, the court has pieced together what appears to be the most likely sequence of events,

which largely matches Smiley's version of events.1

The form used to reject each of the three inmate appeals was called an "Inmate/ Parolee

Screening Form," and had the following notation at the bottom: "This screening action may not

be appealed. If you allege the above reason is inaccurate, then attach an explanation on a

separate piece of paper, or use the back of this screen out – do not write any more on the appeal

itself. Please return this form to the Appeals Coordinator with the necessary information

attached." (Docket # 11, p. 15.) Smiley never took advantage of this method to dispute the

rejection of his inmate appeals. See Medina Decl., ¶¶ 11, 15. 

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DISCUSSION

"No 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

State of California provides its inmates and parolees the right to appeal administratively "any

departmental decision, action, condition or policy perceived by those individuals as adversely

affecting their welfare." See 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. See id. § 3084.5; Brodheim v. Cry, 584 F.3d 1262,

1264-65 (9th Cir. 2009).

Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534

U.S. 516, 524 (2002). All available remedies must be exhausted; those remedies "need not meet

federal standards, nor must they be 'plain, speedy, and effective.'" Id. (citation omitted). Even

when the prisoner seeks relief not available in grievance proceedings, notably money damages,

exhaustion is a prerequisite to suit. Id.; Booth v. Churner, 532 U.S. 731, 741 (2001). The statute

requires "proper exhaustion" of available administrative remedies. See Woodford v. Ngo, 548

U.S. 81, 93 (2006).

A prisoner's failure to exhaust administrative remedies is a matter in abatement.

Defendant has the burden of raising and proving the absence of exhaustion, and may do so by

way of an unenumerated Rule12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.

2003). "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court

may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20, citing Ritza

v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988). The court

can decide factual issues in a jurisdictional or related type of motion because there is no right

to a jury trial as to that portion of the case, unlike the merits of the case (where there is a right

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to a jury trial). See id. Wyatt and Ritza allow this court to resolve factual disputes, but only

with regard to the exhaustion issue. 

Smiley did not exhaust the administrative remedies available to him. None of his three

inmate appeals ever made it to the director's level because one was screened out as untimely and

two were screened out as duplicative of the first. He argues that his appeal that was screened

out as untimely was not untimely because his earlier appeal (i.e., the one defendants contend was

his second appeal) had been lost or misplaced and that his appeal that was screened out as

duplicative was not in fact duplicative because it had been filed earlier. The argument fails

because it is made too late. Cf. Marella v. Terhune, 468 F.3d 1024, 1026-27 (9th Cir. 2009)

(inmate had no ground to dispute the screen-out). Smiley did not make the arguments in the

prison administrative appeals process, notwithstanding the direction on the screening form that

instructed the inmate how to challenge a decision that screened out the appeal for a procedural

problem such as untimeliness or being duplicative. When his inmate appeal was screened out,

Smiley did not pursue the matter further and did not tell the inmate appeal screener what he

thought had occurred. Smiley could have responded to the screen-out of his first appeal by

explaining that it was not a duplicate of the one that received a log number because it was filed

before the one that received a log number - as evidenced by the "received" date stamp. 

A prisoner cannot satisfy the exhaustion requirement "by filing of an untimely or

otherwise procedurally defective administrative grievance or appeal." Woodford v. Ngo, 548

U.S. at 84. A prisoner must complete the administrative review process in accordance with the

applicable procedural rules, including deadlines, as a precondition to bringing suit in federal

court. See id. at 83-84. Smiley did not. His inmate appeals were rejected as untimely and

duplicative at the prison. Smiley never received a director's level decision, as required for

exhaustion of administrative remedies by a California prisoner. Defendants have carried the

burden to prove that Smiley did not satisfy the exhaustion requirement with regard to his Eighth

Amendment claim. The action must be dismissed without prejudice. 

Defendants' motion for an extension of the deadlines set in the order of service for them

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to file the motion to dismiss is GRANTED. (Docket # 17.) Defendants' motion, plaintiff's

opposition, and defendants' reply are all considered timely filed. 

Plaintiff moved for appointment of counsel to represent him in this action. A district

court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an

indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328,

1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success on the merits

and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal

issues involved. See id. Neither of these factors is dispositive and both must be viewed together

before deciding on a request for counsel under section 1915(e)(1). Here, exceptional

circumstances requiring the appointment of counsel are not evident. The motion for appointment

of counsel is DENIED. (Docket # 21.) 

CONCLUSION

Defendants' motion to dismiss is GRANTED because plaintiff failed to exhaust

administrative remedies before filing this action. (Docket # 12.) This action is dismissed

without prejudice. The clerk shall close the file.

IT IS SO ORDERED.

Dated: January 19, 2010 _______________________

 SUSAN ILLSTON

United States District Judge

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