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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JAMES TAYLOR MURRAY,

Plaintiff, No. CIV S-04-1367 MCE GGH P

vs.

H.D.S.P. MEDICAL CARE, et al.,

Defendants. FINDINGS AND RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. Pending before the court is defendants’ motion for judgment on the pleadings

filed September 15, 2005. After carefully considering the record, the court recommends that

defendants’ motion be granted in part and denied in part.

This action is proceeding on the amended complaint filed October 8, 2004. The

court ordered service of defendants Brown, James, Rohlfing, Dial, Cox, Roche, Sandham,

Wagner, Jackson and Felker. On April 6, 2004, defendants James, Rohlfing, Dial, Cox, Roche,

Sandham, Wagner, Jackson and Felker filed an answer. On September 15, 2005, the pending

motion for judgment on the pleadings was filed on behalf of defendants James, Rohlfing, Dial,

Cox, Roche, Sandham, Wagner, Jackson and Felker.

/////

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On December 2, 2005, the parties stipulated to the dismissal of defendants Brown,

Dial and Sandham. On March 22, 2006, the parties stipulated to the dismissal of defendant

James. Accordingly, the court finds that the motion for judgment on the pleadings is addressed

to the following defendants: Rohlfing, Cox, Roche, Wagner, Jackson and Felker.

Defendants first move for judgment on the pleadings on grounds that plaintiff

failed to exhaust his administrative remedies. 42 U.S.C. § 1997e(a) 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.” In order for California prisoners to

exhaust administrative remedies, they 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. 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. Id. at 1237-38.

In Booth v. Churner, 121 S. Ct. 1819 (2001) the Supreme Court held that inmates

must exhaust administrative remedies, regardless of the relief offered through administrative

procedures. 121 S. Ct. at 1825. Therefore, inmates seeking money damages must completely

exhaust their administrative remedies. 42 U.S.C. § 1997e(a) provides that no action shall be

brought with respect to prison conditions until such administrative remedies as are available are

exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002).

In Wyatt v. Terhune, 315 F.3d 1108 (9 Cir. 2003) the Ninth Circuit held that an th

“unenumerated 12(b)” motion is the proper motion to challenge a plaintiff’s failure to exhaust

administrative remedies. The Ninth Circuit allows a 12(b) motion any time before a responsive

pleading has been filed. See Aetna Life Ins. Co. v. Alla Medical Services, Inc., 855 F.2d 1470,

1474 (9 Cir. 1988) (citing Bechtel v. Liberty Nat’l Bank, 534 F.2d 1335, 1340-41 (9 Cir. 1976) th th

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(In Bechtel, the Ninth Circuit noted that “while some courts hold that Rule 12(b) motions must

be made within 20 days of service of the complaint, the rule itself only requires that such motions

‘be made before pleadings if a further pleadings is permitted.’”); see also Ritza v. International

Longshoremen’s and Warehousemen’s Union, 837 F.2d 365 (9 Cir. 1988). th

Defendants’ motion for judgment on the pleadings is defective in two respects. 

First, a motion for failure to exhaust administrative remedies is an affirmative defense and is

required to be raised in a non-enumerated 12(b) motion. Second, even if the court construed

defendants’ motion as a non-enumerated 12(b) motion, it would be untimely because it was filed

after defendants filed their answer. For these reasons, the motion for judgment on the pleadings

based on plaintiff’s failure to exhaust administrative remedies should be denied.

Defendants also move to dismiss plaintiff’s claim that defendants Jackson and

Felker failed to respond to his administrative grievances on grounds that plaintiff has no

constitutional right to a prison grievance system. Judgment on the pleadings is proper when the

moving party clearly establishes on the face of the pleadings that no material issue of fact

remains to be resolved and that it is entitled to judgment as a matter of law. Hal Roach Studios,

Inc. v. Richard Feiner & Co, Inc., 896 F.2d 1542, 1549 (9 Cir. 1989). th

The amended complaint contains the following allegations against defendants

Jackson and Felker. Plaintiff alleges that defendant Jackson denied him his right to file an

administrative grievance by not responding to his appeals. Amended Complaint, p. 4: 11-12. 

Plaintiff alleges that he wrote a letter to the Warden regarding his problems with administrative

grievances. This letter was passed down to defendant Felker who told plaintiff to go through the

appeals coordinator. Id., p. 4: 13-15. Plaintiff later again alleges that defendant Jackson denied

him his right to access the appeals system. Id., p. 6: 26-27. 

Plaintiff has no constitutional right to a prison grievance procedure. Ramirez v.

Galaza, 334 F.3d 850, 860 (9 Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9 Cir. 1988) th th

(order) (“[t]here is no legitimate claim of entitlement to a grievance procedure.”). Pursuant to

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Ramirez and Mann, the court finds that plaintiff has failed to state colorable claims against

defendants Jackson and Felker. Accordingly, defendants’ motion for judgment on the pleadings

should be granted as to the claims against these defendants.

Accordingly, IT IS HEREBY RECOMMENDED that defendants’ September 15,

2005, motion for judgment on the pleadings be granted with respect to plaintiff’s claims against

defendants Jackson and Felker; defendants’ motion should be denied in all other respects.

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 twenty

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 reply to the objections

shall be served and filed within ten 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). 

DATED: 5/4/06

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

mur1367.mtd

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