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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JUAN MARTINEZ, 

Plaintiff,

v.

ERNESTINE ROBINSON; et al., 

Defendants. /

No. C 09-1349 MHP (pr)

ORDER DENYING MOTION TO

DISMISS

INTRODUCTION

Juan Martinez, an inmate at the Correctional Training Facility in Soledad, California,

filed a pro se civil rights action for damages under 42 U.S.C. section 1983 alleging that

defendants violated his right to be free from retaliation. Defendants have moved to dismiss

under Rule 12(b) of the Federal Rules of Civil Procedure on the ground that plaintiff did not

properly exhaust available administrative remedies under 42 U.S.C. section 1997e(a). 

Plaintiff has filed an opposition. For the reasons discussed below, the court will deny the

motion.

BACKGROUND

A. Scope of Complaint

Martinez alleges the following in his complaint: In July 2007, he was a garment

assembler for Prison Industries Authority at CTF-Soledad. On July 26, 2007, he complained

to superintendent Ernestine Robinson that supervisor Stillerman was insulting Hispanic

workers. She declined to do anything about the problem. As Martinez departed, he told her

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an inmate appeal would be filed against them. Thereafter, Robinson contacted custody staff

and asked the custody staff to remove Hispanic workers from the job site and send them back

to their cells. Another inmate heard Robinson talking with Phil Earley about the matter;

Robinson reportedly said that she didn't need another civil complaint in her file and Earley

reportedly responded that they should say that Martinez and others were "instigating this." 

Complaint, p. 6. Martinez later received a CDC-115 accusing him of participating in a work

stoppage on July 26. On July 30, 2007, Martinez was informed that he had been suspended

from work. He complained. The associate warden gave him permission to return to work on

August 1, but Robinson and Earley refused to let him return to work on August 2. After

talking to the associate warden again, on August 6, he left a telephone message for Robinson

telling her that the associate warden said he needed to go to work. On August 7, Martinez

was transferred to ad-seg, and received a CDC-115 for making threats against Robinson. On

August 30, he was released from ad-seg and transferred to another yard, on the

recommendation of associate warden Ortiz. On September 11, 2007, Martinez was found not

guilty of the CDC-115 that accused him of threatening staff. He alleges that defendants

Robinson and Earley retaliated against him for exercising his First Amendment rights. 

The court conducted an initial review under 28 U.S.C. section 1915A. The court

liberally construed the complaint, and determined that it alleged a cognizable claim against

the defendants, who allegedly retaliated against Martinez after he complained of verbal

harassment and stated he would be filing an inmate grievance.

B. Administrative Exhaustion Efforts

Martinez filed two separate appeals relevant to this case, Appeal Log # 07-03358 and

# 07-03748. Martinez also tried three times to submit another appeal, but all were rejected for

supposedly duplicating Appeal Log # 07-03358. 

In Appeal Log # 07-03358, Martinez complained of racial discrimination on the part

of Stillerman and failure to reprimand staff on the part of Robinson. At the second level, the

reviewer partially granted the appeal, noting that appropriate supervisory staff conducted an

inquiry into the matter. Id. The second level decision noted that the retaliation claim that

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arose from this appeal's underlying incident was a separate matter covered exclusively by

Appeal Log # 07-03748. Id. Martinez pursued the matter, and his appeal was denied at the

director's level. Id. 

In Appeal Log # 07-03748, Martinez alleged that Earley had retaliated against him

for filing an appeal concerning racial discrimination. At the second level, the reviewer found

that appropriate supervisory staff conducted an inquiry into the matter and that the

information obtained was confidential and not subject to disclosure. Martinez appealed the

decision to the director's level, and it was denied at the director's level. Id. 

In addition to the two inmate appeals that received appeal log numbers, Martinez tried

three more times to file an appeal that included a claim that Robinson had retaliated against

him. His inmate appeal dated October 9, 2007 complained that Robinson had retaliated. 

Opposition, Exh. B. That appeal was screened out as duplicative of Appeal Log # 07-3358. 

Opposition, Exh. C. Martinez responded with a letter to the appeals coordinator asking that

the screen-out decision be reconsidered because the appeal was not duplicative. Opposition,

Exh. D. The appeal coordinator sent back the materials and explained again that they were

duplicative of Appeal Log # 07-3358. Opposition, Exh. E. Martinez tried yet again to have

his appeal considered, and sent a letter to the warden explaining that his new appeal was not

duplicative. Opposition, Exh. F. The appeal coordinator sent back the materials and

explained yet again that the new appeal duplicated Appeal Log # 07-3358. Opposition, Exh.

G. 

DISCUSSION

"No action shall be brought with respect to prison conditions under [42 U.S.C. section

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

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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 and Rehabilitation. See id. § 3084.5; Woodford v. Ngo, 548 U.S. 81, 85-86

(2006).

Exhaustion in prisoner cases covered by section 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. at 93.

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

Defendants have the burden of raising and proving the absence of exhaustion, and may do so

by way of a motion pursuant to Rule12(b). 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))

Martinez exhausted the administrative remedies available to him. As to his retaliation

claim against defendant Earley, he filed an inmate appeal (i.e., Appeal Log # 07-3748) that

(a) concerned the claim asserted in his complaint and (b) received a decision at the director's

level before he filed this action. 

As to his retaliation claim against defendant Robinson, Martinez did all that he could

to exhaust his claim against her. He tried three times to file an appeal that concerned the

claim asserted in his complaint, but he was rejected each time because the new appeal

supposedly duplicated an earlier appeal. The prison staff's rejection of his attempts to pursue

the retaliation appeal against Robinson excused him from further exhaustion efforts. 

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Defendants contend that Martinez did not properly exhaust his retaliation claim in

Appeal Log # 07-3358 because the appeal did not allude to retaliation. That Martinez did not

allude to retaliation in the appeal is not dispositive because, when he attempted to submit an

inmate appeal that did mention Robinson's alleged retaliation, the appeals coordinator

screened it out as duplicating Appeal Log # 07-3358. Martinez was told his new retaliation

appeal was duplicative of the earlier appeal not just once, but three times. The prisoner need

not exhaust further levels of review once he was reliably informed by an administrator that

no more remedies were available. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). 

Denying Martinez the ability to appeal Robinson's retaliation because Appeal Log # 07-

03358 supposedly covered it, while maintaining in that same appeal that the retaliation claim

was a separate matter, afforded the plaintiff no available remedy. The court finds that the

improper rejection of Martinez's attempts to pursue the retaliation appeal against Robinson

excused him from further exhaustion efforts. Cf. Marella v. Terhune, 568 F.3d 1024, 1027-

28 (9th Cir. 2009) (implying that case should not be dismissed for non-exhaustion if the

inmate appeal was screened out improperly).

Defendants also argue that Martinez did not abide by applicable procedures and did

not file timely appeals. This appears to be a post-hoc rationale since the reason given at the

time of the denial related to the duplicativeness of the appeals.

CONCLUSION

Defendants' motion to dismiss is DENIED. (Docket # 9.) 

The court has a Pro Se Prisoner Mediation Program in which selected prisoner cases

with unrepresented plaintiffs are referred to a neutral magistrate judge for mediation

proceedings consisting of one or more conferences as determined by the mediator. Good

cause appearing therefor, this case is now referred to Magistrate Judge Vadas for mediation

proceedings pursuant to the Pro Se Prisoner Mediation Program. The proceeding will take

place within ninety days of the date this order is filed. Magistrate Judge Vadas will

coordinate a time and date for a mediation proceeding with all interested parties and/or their

representatives and, within five days after the conclusion of the mediation proceedings, file

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with the court a report for the prisoner mediation proceedings. The clerk will send to

Magistrate Judge Vadas a copy of the case file for this action.

IT IS SO ORDERED.

Dated: July 28, 2010 ______________________

Marilyn Hall Patel

United States District Judge

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