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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

TONY CAMPBELL,

Plaintiff, No. CIV S-04-1292 MCE DAD P

vs.

J. BAILEY, et al.,

Defendants. FINDINGS AND RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with this action. The case is before

the court on defendants’ motion to dismiss the action pursuant to the unenumerated portion of

Rule 12(b) of the Federal Rules of Civil Procedure on the ground that plaintiff failed to exhaust

the available administrative remedies prior to filing suit.

Plaintiff responded to defendants’ motion by filing a motion to oppose the motion. 

Plaintiff’s motion did not include proof of service on defendants. Plaintiff was ordered to file

and serve correctly titled opposition with a proper proof of service. Plaintiff has filed a

document titled “Opposition,” but the filing is unsigned and the attached proof of service does

not reflect service of the opposition on defendants’ counsel. Although plaintiff’s opposing

documents are defective, the court finds that plaintiff’s evidence demonstrates conclusively that

defendants’ motion should be granted. 

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PROCEDURAL HISTORY

Plaintiff’s complaint was received for filing on July 7, 2004. The complaint bears

a signature date of June 23, 2004, and a verification date of June 24, 2004. The accompanying

application to proceed in forma pauperis is dated June 25, 2004. Plaintiff did not submit a proof

of service indicating the date on which he delivered his documents to prison officials for mailing.

In his original complaint, plaintiff affirmatively alleged that he did not complete

the grievance process on his claim of excessive force. On July 12, 2004, the undersigned

recommended that this action be dismissed without prejudice to the filing of a new action after

administrative remedies are exhausted. Plaintiff objected, arguing that he “did exhaust his

administrative remedies” and “made a mistake marking no, on his civil suit.” In light of

plaintiff’s withdrawal of his concession of nonexhaustion, the court vacated the findings and

recommendations and dismissed the complaint with leave to amend.

Plaintiff filed an amended complaint on August 19, 2004, but did not use the civil

rights complaint form provided by the court or follow the format of the form complaint. On

November 15, 2004, the amended complaint was dismissed for failure to provide all necessary

information and for failure to include any prayer for relief.

Plaintiff filed a second amended complaint on December 13, 2004. In this

pleading plaintiff alleges that he filed a grievance and that the grievance process is completed. 

The court directed the United States Marshal to serve the second amended complaint on

defendants Bailey, Reyes, and Rowe. Defendants Bailey and Rowe responded to the pleading by

filing a motion to dismiss the action. The United States Marshal was unable to locate defendant

Reyes for service and filed a return of service unexecuted as to defendant Reyes.

The court’s order filed March 4, 2005, advised plaintiff of the requirements for

opposing a motion to dismiss for failure to exhaust administrative remedies made by a defendant

pursuant to non-enumerated Rule 12(b). (Order filed March 4, 2005, at 3-4.)

/////

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THE PARTIES’ ARGUMENTS AND EVIDENCE

In his second amended complaint, plaintiff alleges that defendants Bailey, Reyes,

and Rowe used unnecessary force during an incident on May 25, 2004. Plaintiff alleges that he

filed a grievance on 5-25-04 on this issue and why the force wasent

[sic] needed[.] [T]he appeal came back granted and stated

defendant didnt [sic] have a reason to use extra force because

plaintiff was controlled by J. Baileys [sic] left foot on plaintiff [sic]

right shoulder and his elbow[.] [T]his was decided on 6-8-04.

(Second Am. Compl. at 3-4.)

Defendants assert that plaintiff did not exhaust available administrative remedies

prior to bringing this action. Defendants offer two declarations to demonstrate that there is no

record of an inmate appeal submitted by plaintiff and accepted for processing on a claim that

defendants applied excessive force against plaintiff on May 25, 2004. Defendants state that

plaintiff submitted an appeal on July 21, 2004, the appeal was determined to be an appeal

concerning a rules violation report, the appeal was recategorized as a disciplinary appeal and was

returned to plaintiff for resubmission with a copy of the rules violation report, and plaintiff

resubmitted the appeal on September 15, 2004. Defendants contend that plaintiff did not contest

the determination that his resubmitted appeal was untimely and that he did not exhaust the appeal

by pursuing it to the director’s level.

The warden’s review form provided by defendants does not indicate the log

number of the appeal but indicates a date of July 23, 2004, and bears a reference to “CCI Bailey,

J.C.” and “sprayed with O.C. pepper spray.” The tracking system printout shows an informal

appeal received from plaintiff on July 21, 2004, and screened out on July 23, 2004, as an

incomplete disciplinary appeal requiring documentation. The printout also shows an informal

appeal received from plaintiff on September 15, 2004, and screened out on September 17, 2004,

as untimely for not having been resubmitted within 15 working days after the appeal was

returned for attachment of documentation.

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4

Plaintiff has provided a copy of an inmate appeal that does not bear a log number. 

The appeal is dated June 3, 2004, and alleges that plaintiff was subjected to unnecessary force on

May 25, 2004, during an incident that involved J. Bailey, J. Rowe, and J. Reyes. On the form,

plaintiff requested that the appeal “be filed as a complaint.” The form is stamped “BYPASS” at

the informal and first formal levels. Notations in the bottom left hand corner of the form include

the date “7/23” and appear to refer to a CDC 115. The appeal bears three date stamps reflecting

receipt by the appeals branch on June 16, 2004; July 21, 2004; and September 15, 2004. On the

back of the appeal form, in the section that reflects action at the second formal level, a check

mark has been entered in the “Granted” box, two signatures have been entered, the abbreviation

“sgt” has been entered in the space for the date completed, and the date “9-25-04” has been

entered as date returned to inmate. Plaintiff has not provided a copy of the written decision

described in his complaint, i.e., the alleged determination that the defendants did not have a

reason to use additional force because plaintiff was controlled by defendant Bailey’s left foot on

plaintiff’s right shoulder and elbow.

A “Rights and Responsibilities” form attached to the inmate appeal bears

plaintiff’s signature dated July 18, 2004, and the receiving staff member’s signature dated July

21, 2004. It appears that plaintiff’s appeal was first received in the appeals branch on June 16,

2004, that it was returned to plaintiff for completion of the rights and responsibilities form, and

that appeals branch received the appeal a second time on July 21, 2004. The appeal submitted by

plaintiff appears to be the same appeal described by defendants as recategorized, returned for

resubmission with documentation, and resubmitted on September 15, 2004. Plaintiff’s evidence

is therefore consistent with defendants’ except for the back page of the appeal form, which shows

that the appeal was granted on September 25, 2004. Significantly, plaintiff’s evidence

contradicts the allegations in the second amended complaint concerning the date on which

plaintiff filed a grievance and the date on which the grievance was granted.

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ANALYSIS

By the Prison Litigation Reform Act of 1995 (“PLRA”), Congress amended 42

U.S.C. § 1997e to provide that “[N]o action shall be brought with respect to prison conditions

under section 1983 of this title, 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 exhaustion requirement “applies to all inmate suits about

prison life, whether they involve general circumstances or particular episodes, and whether they

allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). 

Exhaustion of prison administrative procedures is mandated regardless of the relief offered

through such procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). Courts may not read

futility or other exceptions into the PARA’s statutory exhaustion requirement. Id. at 741 n.6.

In California, state regulations permit prisoners to appeal “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). Most appeals progress from an

informal review through three formal levels of review. See Cal. Code Regs. tit. 15, § 3084.5. A

decision at the third formal level, also referred to as the director’s level, is not appealable and

will conclude a prisoner’s administrative remedy. Cal. Code Regs. tit. 15, §§ 3084.1(a) and

3084.5(e)(2). In order to satisfy the exhaustion requirement of 42 U.S.C. § 1997e(a), a California

prisoner must submit an inmate appeal at the appropriate level and proceed to the highest level of

administrative review available before filing suit. Ngo v. Woodford, 403 F.3d 620, 624-25 (9th

Cir. 2005).

The PLRA exhaustion requirement creates a defense that defendants may raise in

an unenumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1117-19 & nn.9 & 13

(9th Cir.), cert. denied sub nom. Alameida v. Wyatt, 540 U.S. 810 (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. “[I]f the district court looks beyond the

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pleadings to a factual record in deciding the motion to dismiss for failure to exhaust–a procedure

closely analogous to summary judgment–then the court must assure that [the prisoner] has fair

notice of his opportunity to develop a record.” Id. at 1120 n.14. If the court concludes that the

prisoner has not exhausted administrative remedies on any claim, “the proper remedy is dismissal

of the claim without prejudice.” Id. at 1120.

In the present case, the court’s order filed March 4, 2005, provided plaintiff with

notice of the requirements for opposing a motion to dismiss for failure to exhaust administrative

remedies made by a defendant pursuant to non-enumerated Rule 12(b). Plaintiff and defendants

have offered almost identical evidence concerning plaintiff’s inmate appeal. This evidence

provides a factual record demonstrating that plaintiff did not exhaust available administrative

remedies prior to bringing this action.

Plaintiff brought his action by mailing his complaint to the court on a date

between June 25, 2004, and July 7, 2004. Plaintiff had submitted an inmate appeal concerning

his claims prior to June 25, 2004, but he had not yet received any decision on the appeal and was

actively litigating the appeal for several months after plaintiff brought this action. Plaintiff

signed the required rights and responsibilities form on July 18, 2004, and resubmitted his appeal

on July 21, 2004. He resubmitted the appeal again on September 15, 2005, and contends that the

appeal was decided in his favor on September 25, 2005, approximately three months after he

brought this action. Thus, plaintiff’s original complaint correctly indicated that the grievance

procedure was not completed when the complaint was filed.

The record establishes that plaintiff failed to exhaust available administrative

remedies before he brought this suit. “The PLRA requires prisoners to exhaust all available

administrative remedies before filing a § 1983 claim in federal court.” Ngo, 403 F.3d at 625

(emphasis omitted). The court is required to dismiss an action without prejudice where a

prisoner failed to exhaust administrative remedies prior to filing suit. McKinney v. Carey, 311

F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam) (concluding that it would undermine attainment

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1

 Because plaintiff did not exhaust his administrative remedies prior to bringing this action,

the court need not determine at this time whether plaintiff subsequently exhausted administrative

remedies and, if so, when. The undersigned expresses no opinion with regard to plaintiff’s evidence

that his appeal was granted by the warden on September 25, 2004, thereby exhausting the available

administrative remedies.

7

of congressional objectives to permit a prisoner to exhaust administrative remedies while

proceeding with a federal suit). The undersigned will therefore recommend that defendants’

motion to dismiss be granted and that this action be dismissed without prejudice to the filing of a

new action.1

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Defendants’ May 6, 2005 motion to dismiss be granted; and

2. This action be dismissed without prejudice as to all defendants for failure to

exhaust available administrative remedies prior to bringing the action.

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 and serve

written objections with the court. A document containing objections should be titled “Objections

to Magistrate Judge’s Findings and Recommendations.” Any reply to objections shall be filed

and served within ten days after service of the objections. The parties are advised that failure to

file objections within the specified time may, under certain circumstances, waive the right to

appeal the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: September 14, 2005.

DAD:13

camp1292.mtd

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