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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VINCENT PRICE McCOWAN,

Plaintiff, No. CIV S-04-1593 LKK DAD P

vs.

WARDEN M. KNOWLES, et al.,

Defendants. FINDINGS AND RECOMMENDATIONS

 /

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

before the court on defendants’ motion to dismiss for failure to exhaust administrative remedies

and for failure to state a claim upon which relief may be granted. Plaintiff opposes the motion.

PROCEDURAL HISTORY

Plaintiff is confined in Pelican Bay State Prison. His civil rights complaint

concerns the handling of confidential legal mail at California State Prison - Sacramento, where

plaintiff was previously housed.

Plaintiff’s complaint is dated March 16, 2004, and was delivered to prison

authorities for mailing on that date. The complaint was received in the United States District

Court for the Central District of California on March 19, 2004, and was filed on March 31, 2004. 

By order filed April 7, 2004, the Central District court granted plaintiff’s application to proceed

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in forma pauperis, screened plaintiff’s complaint, and authorized service of the complaint on

defendants Knowles and Johnson. The court noted that venue in the Central District of

California appeared to be questionable.

On June 28, 2004, defendants Knowles and Johnson moved to dismiss the

complaint on the grounds that venue in the Central District is improper and the complaint fails to

state a claim. Plaintiff filed opposition to the motion on July 29, 2004. On July 30, 2004, the

Central District court determined that venue in this action lies solely in the Eastern District of

California and found it to be in the interests of justice to transfer the case to the Eastern District.

The case was received in the Eastern District on August 9, 2004. On August 18,

2004, the undersigned issued an order setting forth the procedures governing prisoner cases in

this court. The order provides that all motions to dismiss and all motions brought pursuant to

Rule 12 of the Federal Rules of Civil Procedure shall be briefed pursuant to Local Rule 78-

230(m). The order advises plaintiff in detail of the requirements for opposing a motion to

dismiss for failure to exhaust administrative remedies made by a defendant pursuant to nonenumerated Rule 12(b). (Order filed Aug. 18, 2004, at 2-3.)

On September 17, 2004, defendants filed a motion to dismiss the claims against

them under Rules 12(b) and 12(b)(6) of the Federal Rules of Civil Procedure for failure to

exhaust administrative remedies prior to bringing this action and for failure to state a claim upon

which relief can be granted. Plaintiff filed timely opposition to the motion.

PLAINTIFF’S ALLEGATIONS REGARDING EXHAUSTION

Plaintiff’s complaint has been submitted on a civil rights complaint form. By his

entries on the form, plaintiff alleges that there is a grievance procedure available at the institution

where the events relating to the complaint occurred, that he filed a grievance concerning the facts

relating to the complaint, and that the grievance procedure was not completed.

Attached to the form complaint is a copy of a first level appeal response dated

March 3, 2004, denying plaintiff’s appeal dated December 3, 2003. In his appeal, plaintiff

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 Defendants’ evidence reveals that the appeal was returned to plaintiff for failure to explain

why he was dissatisfied with the first level response. Plaintiff added a sentence, as set forth infra.

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complained of one instance of alleged mishandling of a piece of confidential legal mail and

requested the following action:

1). Investigate my attornies [sic] Yagman and Yagman, call

information, and look through the yellow pages at the law library,

you’ll see that, their law office attornies [sic], that accept legal

mail. 2). Send me their full address, when you find out I was

right, and respect my legal, and regular mail. 

(Compl., Attached Copy of Inmate Appeal.)

The inmate appeal bypassed the informal level. At the first formal level,

defendant Johnson interviewed plaintiff telephonically and then denied the appeal. Defendant

Johnson summarized his investigation as follows:

A review of your complaint revealed that you sent legal mail to the

law offices of Yagman and Yagman. This mail was returned to

you because you addressed the envelope incorrectly. Upon return

the envelope was inspected, but not read, for contraband in

accordance with California Code of Regulations, CCR, Title 15

Section 3147, Definition and Disposition of Mail sub-section (4). 

In this sub-section it states that all “undelivered letters and

packages returned to a facility by the post office will be opened and

inspected before returning to the inmate. The purpose of this

inspection will be to determine if the content originated with the

inmate sender identified on the letter or package, and to prevent

transmission of material, substances, and property which an inmate

is not permitted to possess in the correctional facility. The

inspection of returned mail will include regular mail, which the

inmate may have been authorized to seal before mailing, and

letters, which were mailed as confidential correspondence.”

(Id.)

On March 16, 2004, plaintiff requested second level review by making the

following entry in section F of the inmate appeal form:

“DISSATISFIED” . . . SEE ACTION REQUEST (B). LEGAL

ACTIONS ARE IN PROCESS.1

(Id. (ellipsis in original).)

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THE PARTIES’ ARGUMENTS

Defendants seek dismissal of this action on two grounds. First, defendants seek

dismissal pursuant to the unenumerated portion of Rule 12(b) on the ground that plaintiff failed

to exhaust available administrative remedies related to the claims alleged in his complaint prior

to filing suit.

In support of dismissal for failure to exhaust, defendants offer evidence to

establish the following facts: plaintiff alleges in his complaint that he filed a grievance regarding

the events at issue but the grievance process was not completed; prison records show that

plaintiff submitted a grievance dated December 3, 2003, complaining that he sent a confidential

letter to his attorney that was postmarked December 4, 2003, but was returned on January 6,

2004, in an opened condition; the letter was returned with a notation by the U.S. Postal Service

on the envelope that it was undeliverable as addressed; the envelope contained a street name but

no number; in his grievance, plaintiff asked prison officials to look up the attorney’s address and

provide him with the address; review at the informal level was bypassed; at the first formal level,

defendant Johnson, Office Services Supervisor, denied the grievance, noting that the letter had

been returned as undeliverable and had been opened and inspected for contraband in accordance

with prison regulations, but had not been read; plaintiff sought review at the second level stating

he was dissatisfied with the first level response and had filed a lawsuit; plaintiff’s complaint is

dated March 16, 2004, the same day plaintiff requested review of the grievance at the second

level; the grievance was partially granted at the second level by defendant Knowles on April 8,

2004, on the ground that, although the regulations provided for opening and inspecting

confidential mail for contraband, that should have been done in plaintiff’s presence; defendant

Knowles advised plaintiff that mail room staff would receive refresher training on the procedures

for processing returned mail; to the extent that plaintiff asked prison officials to locate an address

for his attorney, defendant Knowles denied the grievance, finding that it was plaintiff’s

responsibility to obtain the necessary information; plaintiff did not seek review at the third level.

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Defendants’ evidence includes a declaration by D. Sackett, Case Records Manager

at Pelican Bay State Prison and custodian of inmate central file records. (Sackett Decl. ¶ 1.) 

Declarant states that he has attached to his declaration true and correct copies of documents from

plaintiff’s central file. The nine-page attachment contains plaintiff’s grievance with responses at

the first and second formal levels, as well as a copy of the envelope that was returned and opened

outside plaintiff’s presence. This copy of the grievance differs from the copy attached to

plaintiff’s complaint in that it includes an appeal screening form returning the grievance to

plaintiff to explain why he was dissatisfied with the first level response. Plaintiff resubmitted the

appeal with material added to Section F:

“DISSATISFIED” SEE ACTION REQUEST (B) . . . LEGAL

ACTION ARE IN PROCESS. On 3/16/004 and 3/24/004, I don’t

agree with the denied appeal response, and I filed a lawsuit.

(Sackett Decl., Attach. at page bearing Bates-stamp number 002 (ellipsis in original).) This copy

of the inmate appeal also includes the second level response by defendant Knowles, dated April

8, 2004.

Defendants offer the declaration of N. Grannis, Chief of the Inmate Appeals

Branch in Sacramento. (Grannis Decl. ¶ 1.) Declarant states that the records maintained by the

branch were searched for director’s level appeals filed by plaintiff and accepted for review since

2002. One appeal was located. On January 8, 2004, plaintiff submitted and the branch accepted

for review an appeal regarding plaintiff’s name. That appeal was denied on April 2, 2004. As of

June 25, 2004, no other appeal had been received from plaintiff and accepted for review at the

third level. (Id. ¶¶ 2-4.)

Defendants argue that plaintiff failed to exhaust available administrative remedies

because he filed an inmate appeal concerning the claims alleged in this action but did not exhaust

that appeal by obtaining a director’s level decision prior to filing this action. Defendants cite the

concession to nonexhaustion in the complaint, the fact that plaintiff mailed his civil rights

complaint on the same day he requested second level review, and the evidence that the second

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level review was not completed until April 8, 2004, almost three weeks after plaintiff filed his

complaint by placing it in the mail. Defendants contend that this action should be dismissed

without prejudice for failure to exhaust available administrative remedies prior to filing suit.

In the alternative, defendants seek dismissal of this action for failure to state a

claim for relief. Defendants argue first that there is no evidence that defendant Johnson, a

supervisor of mail room staff, or defendant Knowles, the warden of the institution, opened the

returned letter and in fact both merely responded to plaintiff’s grievance concerning the opening

of his returned letter. Defendants contend that they did not subject plaintiff to the deprivation of

a constitutional right and cannot be held liable simply because they are supervisors. Defendants

also argue that prison officials may open letters from attorneys to inspect for contraband and it is

unsettled in this circuit whether an inmate must be present during the inspection. Defendants

assert that plaintiff’s claim is properly analyzed as a claim of denial of access to the courts or

legal assistance, and plaintiff cannot prevail on such a claim because he cannot show actual

injury to his right of access to his attorney based on one occasion when mail was returned by the

postal service and opened for inspection outside his presence. Defendants assert entitlement to

qualified immunity on such a claim because it is not clearly established that opening legal mail to

inspect for contraband outside the prisoner’s presence is unconstitutional.

Plaintiff’s opposition commences with an incomprehensible discussion of

timeliness, replete with citations to rules that have no apparent application to the pending motion. 

Plaintiff continues with an equally incomprehensible discussion of proceedings in the Central

District. With regard to the exhaustion issue, plaintiff justifies his failure to pursue his grievance

to the third level by explaining that, under state law, an inmate may appeal to the third level if

dissatisfied with the second level response. Plaintiff asserts that he was satisfied with the

warden’s second level response partially granting his appeal, saw no need to process the appeal

to the third level, and had a legal right not to pursue the appeal further. In conclusion, plaintiff

asserts that his inmate appeal “was truly exhausted” and defendants’ motion should be denied.

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With regard to dismissal for failure to state a claim, plaintiff notes the erroneous

reference to “defendants Alameida and Carey” in the heading on page 5 of defendants’ motion. 

Plaintiff attacks defendants’ characterization of his claim and states his belief that mail room

staff read his letter and defendants failed to accept responsibility for the illegal action. Plaintiff

views defendant Knowles’ partial granting of his appeal as proof of misconduct. Plaintiff claims

the defendants engaged in a cover up by not discovering and revealing the name of the person

who opened his mail. He claims he suffered an actual injury when defendants failed to comply

with institutional rules and regulations and did not respect his rights.

Plaintiff’s opposition is supported by a copy of his opposition to defendants’ first

motion to dismiss, an attached copy of plaintiff’s inmate appeal, and a copy of the briefing order

issued by the Central District.

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). The Supreme Court will

not read futility or other exceptions into the PLRA’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

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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 (9th Cir.

2005); Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096

(9th Cir. 2002).

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

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 August 18, 2004, 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 essentially identical evidence concerning the inmate appeal plaintiff submitted to

prison authorities on December 3, 2003. This evidence provides a factual record demonstrating

that plaintiff did not exhaust available administrative remedies prior to bringing this action

against defendants Knowles and Johnson.

/////

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Plaintiff’s civil rights complaint is dated March 16, 2004. Attached to the

complaint is a proof of service in which plaintiff declares that he submitted his complaint and

other documents to prison officials for mailing on March 16, 2004, in accordance with Houston

v. Lack, 487 U.S. 266 (1988). Under the mailbox rule established by Houston v. Lack, plaintiff’s

complaint is deemed to have been filed in the Central District on March 16, 2004, and that is the

date on which this civil rights action was brought. On March 16, 2004, plaintiff also requested

second level review of his inmate appeal because he was dissatisfied with the outcome at the first

level. Plaintiff’s submission of his appeal to the second level demonstrates that he was still

pursuing available administrative remedies when he brought this action on March 16, 2004. 

Thus, plaintiff’s complaint correctly indicates that the grievance procedure was not completed

when the complaint was filed.

On March 22, 2004, the appeals coordinator returned the appeal to plaintiff

because plaintiff did not explain why he was dissatisfied with the first level response. On an

unknown date after March 22, 2004, plaintiff re-submitted his appeal to the second level. An

appeals investigator was appointed to review the appeal, and an inquiry was conducted. The

second level decision was issued on April 8, 2004. Plaintiff does not deny that he was still

pursuing available administrative remedies up to this time.

Plaintiff’s complaint contains a concession that the grievance procedure was not

completed when this action was brought on March 16, 2004. The record demonstrates that

plaintiff proceeded to the next level of administrative review on the same day he delivered his

civil rights complaint to prison officials for mailing to the court. In opposition to defendants’

motion, plaintiff concedes that he was still pursuing available administrative remedies until he

received the second level decision on April 8, 2004.

Defendants have met their burden of showing that plaintiff failed to exhaust

available administrative remedies before he brought this suit. The court is required to dismiss an

action without prejudice where a prisoner failed to exhaust administrative remedies prior to filing

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suit. McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam) (concluding that

it would undermine attainment of congressional objectives to permit a prisoner to exhaust

administrative remedies while proceeding with a federal suit). The undersigned will therefore

recommend that this action be dismissed without prejudice.

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

action, the court need not determine whether plaintiff subsequently exhausted administrative

remedies and, if so, when. The undersigned expresses no opinion on plaintiff’s contention that

the partial grant of his appeal on April 8, 2004, served to exhaust available administrative

remedies. Nor is it necessary for the court to rule on defendants’ motion in the alternative to

dismiss for failure to state a claim.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Defendants’ September 17, 2004 motion to dismiss be granted; and

2. This action be dismissed without prejudice 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: June 24, 2005.

DAD:13

mcco1593.mtd

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