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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JESSE WASHINGTON,

Plaintiff, No. CIV S-04-1317 MCE GGH P

vs.

J. FANNON, et al.,

Defendants. FINDINGS & RECOMMENDATIONS

 /

I. Introduction

Question – What occurs when a prisoner submits to district court a near daily

chronology of all the untoward events that seemingly continue to befall the prisoner? 

Answer – An extremely tedious Findings and Recommendations concerning

administrative exhaustion.

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 to dismiss pursuant to Fed. R.

Civ. P. 12(b) and 12(b)(6) filed December 1, 2004. After carefully considering the record, the

court recommends that defendants’ motion be granted in part and denied in part.

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II. Plaintiff’s Claims

This action is proceeding on the original complaint against defendants Fannon,

Kissinger, Hibbit, Braida, Husky, DeForest, Jackson, Lynn, Turner, Ratliff, Epperson, Wright

and Wagner. 

Plaintiff alleges that on June 30, 2003, defendant Kissinger used excessive force

as he removed plaintiff from his cell. Plaintiff alleges that defendant violently pulled plaintiff

through the partially opened cell door, hitting plaintiff’s lower right back and hip areas against

the steel door.

On July 1, 2003, plaintiff was transferred to a new cell. Upon his arrival,

defendant DeForest confiscated plaintiff’s medically prescribed orthotic inserts and tennis shoes

even after plaintiff showed him his authorizing chrono. Plaintiff immediately summoned the

supervising officer in charge, defendant Lynn, and asked him to permit plaintiff to possess the

inserts and shoes. Defendant Lynn refused to help.

On July 15, 2003, defendant Braida forced plaintiff to go face down on the

dayroom floor. Defendant Braida then kneeled on plaintiff’s lower back and began twisting

plaintiff’s arms. Defendants Lynn and Wright were present but did not intervene. When

defendant Wright escorted plaintiff back to his cell, he continued to twist plaintiff’s arms,

causing plaintiff to suffer pain.

On August 25, 2003, during a search of plaintiff’s cell, defendants Jackson and

DeForest confiscated plaintiff’s prescribed pain medication. When plaintiff was returned to his

cell after the search, defendants Kissinger, Hibbit and Jackson used excessive force against

plaintiff. 

On October 11, 2003, defendant Fannon conducted a retaliatory cell search of

plaintiff’s cell. Defendant Fannon confiscated plaintiff’s orthotic inserts. 

On November 6, 2003, defendants Fannon and Husky failed to provide those

inmates participating in Ramadhan, including plaintiff, with their entire meal. Defendant Fannon

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continued to provide incomplete Ramadhan meals. On November 10, 2003, defendant DeForest

denied plaintiff’s request to be moved to a different housing unit or have other officers deliver

the Ramadhan meals. 

On November 23, 2003, defendant DeForest interviewed plaintiff regarding his

second administrative appeal filed regarding the incomplete Ramadhan meals. Defendant

DeForest denied plaintiff’s requests. Because of the incomplete meals, plaintiff was forced to

discontinue the obligatory Ramadhan fast. 

On January 6, 2004, defendant Wagner interviewed plaintiff regarding his

administrative appeal concerning defendant Braida’s excessive use of force on July 15, 2003. 

Plaintiff refused defendant Wagner’s request to withdraw the appeal. Plaintiff also showed

defendant Wagner his medical chronos for the orthotic inserts. Defendant Wagner refused to

help plaintiff obtain the inserts. 

On January 14, 2004, defendant Fannon refused to give plaintiff his evening meal

food tray. As a result, plaintiff was unable to take his medication. 

On January 20, 2004, defendant Fannon escorted plaintiff to the shower. Plaintiff

asked defendant Fannon to summon the unit officer in charge because defendant Fannon had

applied the mechanical restraints too tightly on plaintiff’s wrists. Defendant Fannon refused to

summon the unit officer and took plaintiff back to his cell. Defendant Fannon then falsely

accused plaintiff of assaulting him, i.e. spitting on him. Plaintiff was found guilty of the offense

and sentenced to a 16 month SHU term.

After defendant Fannon falsely charged plaintiff, defendant Ratliff put plaintiff in

mechanical restraints and held him in the holding cage for three hours. Defendants Ratliff and

Epperson then put plaintiff in a spit mask and moved him to a new building. During the move,

plaintiff was forced to walk 200 yards in cold weather dressed only in boxer shorts. At the new

building, defendants Ratliff and Epperson refused to retrieve plaintiff’s pain medication and

prescribed cotton blanket from his old cell. These defendants also confiscated plaintiff’s

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orthotics and tennis shoes. 

On January 22, 2004, plaintiff asked defendant Turner to review his medical

chrono authorizing his possession of the orthotics and shoes. Plaintiff also told defendant Turner

that he had been without his prescribed cotton blanket and pain medication. Defendant Turner

ignored plaintiff’s request for assistance. 

On January 28, 2004, defendants Wagner and Turner interviewed plaintiff

regarding his inability to obtain his prescribed orthotics, shoes, blanket and pain medication. 

Defendants Turner and Wagner ignored plaintiff’s request for assistance. 

III. Failure to Exhaust 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).

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In the motion to dismiss, defendants argue that plaintiff has only exhausted his

claim that on August 25, 2003, defendants Kissinger, Hibbit and Jackson used excessive force. 

See Grannis Declaration filed December 1, 2004, exhibit A. Defendants state that plaintiff

completed two other appeals to the Director’s Level, appeal nos. 03-1698 and 04-0025, but they

did not raise the other claims raised in this action. Id., Exhibits B, C. 

In appeal no. 03-1698 plaintiff initially complained that he was experiencing

chronic pain in his lower back, spinal stenosis and constant pain in his hips and knees. Id.,

Exhibit B. He complained that he had difficulty walking, standing and sitting for short periods of

time. He also complained that he had been subjected to physical assaults and continued

harassment by prison officials because he did not have chronos verifying his medical problems. 

As relief, plaintiff requested a re-examination, updated chronos for a lower tier/lower bunk, and

possession of his orthopedic shoes and custom orthotic inserts which had been in the property

room since February 27, 2002. 

Appeal no. 03-1698 mentioned two of the issues raised in the instant action: 

excessive force and denial of orthopedic shoes and orthotic inserts. Although this appeal

generally claimed that plaintiff had been assaulted and harassed, it did not describe any specific

instance of assault or harassment. Nor did this appeal identify any particular prison official who

assaulted or harassed plaintiff. The purpose of administrative exhaustion is to give prison

officials time and opportunity to address complaints internally before allowing the initiation of a

federal case. Porter v. Nussle, 534 U.S. 516, 524-525, 122 S. Ct. 983, 988 (2002). Prison

officials do not have an opportunity to address complaints of excessive force if a prisoner does

not describe the incident or identify to the best of his ability those who assaulted him. For that

reason, the court finds that appeal no. 03-1698 did not exhaust any of plaintiff’s excessive force

claims.

In appeal no. 03-1698 plaintiff requested that he be permitted to possess his

orthopedic shoes and custom orthotic inserts which had been in the property room since February

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27, 2002. Id. After the denial of the appeal at the first level, plaintiff elaborated that he had

been in administrative segregation (ad seg) for 18 months and had not received his orthotic

inserts and orthopedic shoes stored in the receiving and release room. Id..

The complaint contains the following specific allegations regarding the orthotic

inserts and orthopedic shoes: 1) on July 1, 2003, defendant DeForest confiscated his orthotic

inserts and orthopedic shoes; 2) on October 11, 2003, defendant Fannon confiscated plaintiff’s

orthotic inserts; 3) on January 6, 2004, defendant Wagner refused to honor plaintiff’s chrono

authorizing him to have orthotic inserts; 4) defendants Ratliff and Epperson confiscated

plaintiff’s orthotic inserts and shoes; 5) on January 22, 2004, defendant Turner refused to honor

plaintiff’s chrono authorizing him to possess the orthotic inserts and orthopedic shoes; 6) on

January 28, 2004, defendants Wagner and Turner also denied plaintiff’s request for possession of

his orthotic inserts and orthopedic shoes. 

The claims in the complaint regarding the orthotic inserts and orthopedic shoes

are different from the claim regarding the inserts and shoes contained in the administrative

appeal. In the appeal, plaintiff complained that his shoes and inserts were being held in receiving

and release following his placement in ad seg. In contrast, the complaint alleges that particular

prison officials confiscated the orthopedic shoes and orthotic inserts and that particular prison

officials denied his request to get them back. The complaint does not allege that plaintiff’s shoes

were held in receiving and release following his placement in ad seg. Appeal no. 03-1698 did

not exhaust plaintiff’s claims regarding the shoes and inserts because it raised different issues

than those raised in the complaint. 

In administrative appeal 04-0025 plaintiff complained that the prison had a policy

of not permitting inmates in ad seg to wear orthopedic shoes. Id., Exhibit C. In this appeal,

plaintiff did not identify any particular prison official who would not let him wear his orthopedic

shoes. In the instant action, plaintiff does not claim that he was not permitted to possess his

orthotic inserts and shoes pursuant to a policy. Rather, he alleges that on 3 particular occasions

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defendants confiscated his inserts and shoes and on 3 particular occasions defendants refused to

help him get the shoes and inserts or honor the chrono authorizing him to possess them. The

complaint suggests that confiscation of the shoes and inserts was arbitrary rather than pursuant to

a policy. Appeal no. 04-0025 did not exhaust plaintiff’s claims regarding the shoes and inserts

because it raised different issues than those raised in the complaint.

On January 3, 2005, plaintiff filed an opposition as well as exhibits in support. 

On January 5, 2005, plaintiff filed a supplemental declaration in support of his opposition. In his

supplemental declaration, plaintiff states that on June 30, 2003, he filed a 602 (first level

informal appeal) regarding the June 30, 2003, incident involving defendant Kissinger. Supp.

Decl., ¶ 12. Plaintiff contends that defendants Wagner and Jackson, the appeals coordinators,

failed to process this appeal. Id. The first exhibit attached to plaintiff’s second package of

exhibits is a 602 signed by plaintiff regarding the June 30, 2003, incident. This appeal contains

no notation indicating that it was processed at any level. As far as the court can tell, none of the

other exhibits submitted by plaintiff concern this particular appeal.

When prison officials fail to respond to an administrative grievance, the prisoner

has exhausted his administrative remedies. See Underwood v. Wilson, 151 F.3d 292 (5th Cir.

1998) (when a prisoner has undertaken all possible appeals but the prison authorities fail to

respond within the required time period, the prisoner has exhausted administrative remedies); see

also Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001) (remedies were not “available” to a prisoner

when the warden did not respond to the inmate’s grievance during the time period required by

regulations). Because plaintiff claims that prison officials failed to process his appeal, and

because defendants, who have the burden, have not factually opposed the declared assertion, the

court finds that this claim is exhausted. 

In his supplemental opposition, plaintiff alleges that the appeals office did not

respond to his appeal regarding defendant DeForest’s July 1, 2003, confiscation of his orthotics

and defendant Lynn’s failure to intervene. Supp. Decl., ¶. Because plaintiff contends that prison

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officials failed to respond to this appeal, and because defendants, who have the burden, have not

factually opposed the declared assertion, the court finds that these claims are exhausted. 

Underwood v. Wilson, supra; Foulk v. Charrier, supra.

In his supplemental declaration, plaintiff contends that he filed a 602 regarding the

July 15, 2003, incident involving defendants Braida, Wright and Lynn, but the Institution

Appeals Coordinator’s Office failed to process the appeal. Supp. Decl., ¶ 16. This claim

conflicts with another claim raised in the complaint: that on January 6, 2004, defendant Wagner

denied plaintiff’s appeal regarding defendant Briada’s use of excessive force. Because plaintiff

has made conflicting allegations regarding this appeal, the court finds that he has not

demonstrated exhaustion. Accordingly, defendants’ motion to dismiss should be granted as to

this claim. 

In his supplemental declaration, plaintiff alleges that he filed a 602 regarding the

August 25, 2003, confiscation of his pain medication and excessive force. Supp. Decl., ¶ 18. As

stated above, defendants concede that plaintiff’s claim alleging excessive force on August 25,

2003, is exhausted. Plaintiff contends that this appeal was exhausted at the Director’s Level,

citing Exhibit 14 submitted in support of his opposition. Id. Exhibit 14 is a Director Level

Appeal denying appeal no. 03-1850. In this appeal, plaintiff complained that on August 25,

2003, defendants improperly confiscated a mattress during a cell search and then used excessive

force when returning plaintiff to his cell. Because this appeal does not mention a confiscation of

pain medication, the court finds that this claim is not exhausted. 

In his supplemental declaration, plaintiff alleges that he filed a 602 regarding

defendant Fannon’s October 11, 2003, confiscation of his orthotic inserts. Supp. Decl., ¶ 20. In

support of this claim, plaintiff refers to exhibits 15 and 16 submitted in support of his opposition. 

Exhibit 16 contains an appeal regarding an unrelated matter.

Exhibit 15 includes a first level appeal response to appeal no. 03-2481 addressing

plaintiff’s complaint regarding the October 11, 2003, incident. The response dated December 16,

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2003, states that the appeal was cancelled because plaintiff became belligerent with Sergeant

Smith who attempted to interview plaintiff. 

Also attached to exhibit 15 is a 602 filed by plaintiff on November 11, 2004,

appealing the cancellation of the appeal based on plaintiff’s conduct during the interview with

Sergeant Smith. A notation in the right hand bottom corner of this appeal indicates that it was

denied as duplicative of the original appeal.

“The PLRA requires prisoners to exhaust all available remedies before filing a § 

1983 claim in federal court.” Ngo v. Woodford, No. 03-16042, 2005 WL 674707 (9th Cir.

March 24, 2005) (italics in original). In Ngo, the Ninth Circuit held that an inmate whose appeal

is denied as untimely must still appeal all denials of his claim completely through the prison’s

administrative process to satisfy the PLRA’s requirement. Id. * 8.

Although plaintiff’s appeal was cancelled based on his lack of cooperation,

plaintiff could still have appealed this cancellation to the next level. Because plaintiff still had

remedies available, the court finds that the claim regarding the October 11, 2003, incident is not

exhausted. Ngo, supra.

In his supplemental declaration, plaintiff does not claim that he filed an

administrative appeal regarding the failure of defendants Fannon and Husky to provide him with

his entire Ramadhan meal on November 6, 2003. Suppl. Decl., ¶ 22. While plaintiff claims he

wrote a letter to the Warden regarding this matter, this does not constitute administrative

exhaustion. Accordingly, the court finds that plaintiff has not exhausted administrative remedies

as to this claim. 

In his supplemental declaration, plaintiff states that he submitted his appeal to

defendant DeForest regarding defendant DeForest’s disregard for plaintiff’s Ramadhan

participation. Supp. Decl., ¶ 23. Plaintiff contends that defendant DeForest did not respond to

this appeal. Id. Because plaintiff claims that prison officials failed to respond to this appeal, and

because defendants, who have the burden, have not factually opposed the declared assertion, the

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court finds that this claim is exhausted. Underwood v. Wilson, supra; Foulk v. Charrier, supra.

In his supplemental declaration, plaintiff does not address his claim that defendant

Wagner denied his appeal regarding defendant Briada’s excessive force. Accordingly, the court

finds that this claim is not exhausted.

In his supplemental declaration, plaintiff states that he submitted an appeal

regarding defendant Wagner’s January 6, 2004, refusal to help him obtain his orthotic inserts. 

Supp. Dec., ¶ 24. Plaintiff contends that this appeal was not “appropriately addressed.” Id.

Plaintiff does not allege that prison officials refused to process this appeal. Accordingly, because

there is no evidence of an appeal to the Third Level, the court finds that this claim is not

exhausted.

In his supplemental declaration, plaintiff contends that he filed a 602 regarding

defendant Fannon’s refusal to give him his evening meal on January 14, 2004. Id., ¶ 25. 

Plaintiff contends that he did not receive an “appropriate response” to this appeal. Id. Plaintiff

does not allege that prison officials refused to process this appeal. Accordingly, because there is

no evidence of an appeal to the Third Level, the court finds that this claim is not exhausted.

In his supplemental declaration, plaintiff does not contend that he exhausted his

administrative remedies as to his claim that on January 20,2004, defendant Fannon used

excessive force and falsely accused plaintiff of assaulting him. Id., ¶ 26. Accordingly, the court

finds that this claim is not exhausted.

In his supplemental declaration, plaintiff states that he filed a 602 regarding his

claims against defendants Ratliff and Epperson on January 20, 2004. Id., ¶ 29. Plaintiff contends

that the institution appeals coordinator’s office and warden denied plaintiff’s appeal by not

responding to them. Id. Because plaintiff claims that prison officials failed to respond to this

appeal, and because defendants, who have the burden, have not factually opposed the declared

assertion, the court finds that this claim is exhausted. Underwood v. Wilson, supra; Foulk v.

Charrier, supra.

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In his supplemental declaration, plaintiff states that he filed an administrative

appeal regarding defendant Turner’s January 22, 2004, denial of his request for orthotics and

shoes. Supp. Decl., ¶ 30. Plaintiff contends that this appeal was not “appropriately responded

to.” Id. Plaintiff does not claim that prison officials refused to respond to this appeal. Without

knowing the actual outcome of this “inappropriately addressed” appeal, the court cannot

determine whether plaintiff has exhausted administrative remedies. Accordingly, the court finds

that this claim is not exhausted.

In his supplemental declaration, plaintiff contends that he filed a 602 regarding the

January 28, 2004, denial of his request for orthotics, etc., by defendants Wagner and Turner. Id.,

¶ 32. Plaintiff alleges that his appeals were not appropriately addressed by the appeals

coordinator’s office and warden. Id. Plaintiff does not claim that prison officials refused to

process these appeals, and has not produced evidence of an appeal to the Third Level. 

Accordingly, the court finds that this claim is not exhausted.

The court also observes that plaintiff submitted a voluminous number of exhibits

in support of his opposition. Several of these exhibits are administrative appeals concerning

issues not raised in this action. Plaintiff has also submitted documents regarding his claims filed

with the California Board of Control which are also not relevant to the pending motion. In

addition, plaintiff has submitted several memorandums from prison officials denying appeals on

procedural grounds. The court cannot tell whether these documents are relevant to the pending

motion as they are not linked to any particular appeal. Plaintiff has also submitted several

memorandums indicating that he sought to circumvent the exhaustion process by filing letters

with the Warden rather than following the administrative appeal procedure. The court has

reviewed these records and finds that they do not demonstrate exhaustion of any of the claims

discussed above.

In conclusion, the court finds that the following claims are not exhausted: 1)

defendant Briada used excessive force on July 15, 2003, and defendants Wright and Lynn failed

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to intervene; 2) on August 25, 2003, defendants confiscated plaintiff’s pain medication; 3) on

October 11, 2003, defendant Fannon confiscated plaintiff’s orthotic inserts and conducted a

retaliatory cell search; 4) defendants Fannon and Husky failed to provide plaintiff with his entire

Ramadhan meal on November 6, 2003; 5) on January 6, 2004, defendant Wagner refused to

assist plaintiff in obtaining his orthotic inserts; 6) on January 6, 2004, defendant Wagner denied

plaintiff’s appeal regarding defendant Briada’s excessive force; 7) on January 14, 2004,

defendant Fannon refused to provide plaintiff with his evening meal; 8) on January 20, 2004,

defendant Fannon used excessive force; 9) on January 22, 2004, defendant Turner denied

plaintiff’s request for orthotics and shoes; 10) on January 28, 2004, defendants Wagner and

Turner denied plaintiff’s request for orthotics. 

The court that finds that the following claims are exhausted: 1) defendant

Kissinger used excessive force on June 30, 2003; 2) on July 1, 2003, defendant DeForest

confiscated plaintiff’s orthotics inserts and shoes; defendant Lynn refused to help in retrieving

these items; 3) defendant DeForest denied plaintiff’s request for accommodations so that he

could participate in Ramadhan; 4) on January 20, 2004, defendants Ratliff and Epperson violated

plaintiff’s constitutional rights.

IV. Failure to State a Claim

Legal Standard 

A complaint should not be dismissed under Rule 12(b)(6) unless it appears

beyond doubt that plaintiff cannot prove any set of facts consistent with his allegations which

would entitle him to relief. NOW, Inc. v. Schiedler, 510 U.S. 249, 256, 114 S. Ct. 798, 803 

(1994); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232 (1984), citing Conley

v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101 (1957), Cervantes v. City of San Diego, 5 F.3d

1273, 1274-75 (9th Cir. 1993). Dismissal of the complaint, or any claim within it, “can be based

on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a

cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990);

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see also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). 

In considering a motion to dismiss, the court must accept as true the allegations of

the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.

Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the

motion and resolve all doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421,

89 S. Ct. 1843, 1849, reh’g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will “‘presume

that general allegations embrace those specific facts that are necessary to support the claim.’”

NOW, 510 U.S. at 256, 114 S. Ct. at 803, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent

standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596

(1972).

The court may consider facts established by exhibits attached to the complaint. 

Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also

consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d

1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other

papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir.

1986). The court need not accept legal conclusions “cast in the form of factual allegations.” 

Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 

A pro se litigant is entitled to notice of the deficiencies in the complaint and an

opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See

Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).

Analysis

The court has found unexhausted three of the four claims that defendants move to

dismiss for failing to state a claim: 1) defendant Fannon conducted a retaliatory cell search; 2)

defendant Wagner improperly denied plaintiff’s appeal; and 3) defendant Fannon failed to

provide plaintiff with his evening meal. Accordingly, the court will not address whether these

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claims are colorable.

Defendants argue that the claims against defendants Ratliff and Epperson are not

colorable. As discussed above, plaintiff alleges that after defendant Fannon falsely charged

plaintiff on January 20, 2004, defendant Ratliff put plaintiff in mechanical restraints and held

him in the holding cage for three hours. Defendants Ratliff and Epperson then put plaintiff in a

spit mask and moved him to a new building. During the move, plaintiff was forced to walk 200

yards in cold weather dressed only in boxer shorts. At the new building, defendants Ratliff and

Epperson refused to retrieve plaintiff’s pain medication and prescribed cotton blanket from his

old cell. These defendants also confiscated plaintiff’s orthotics and tennis shoes. 

Defendants argue that plaintiff’s allegations do not state Eighth Amendment

claims because his injuries are de minimis. In their argument, defendants cite 42 U.S.C. §

1997e(e) which requires a showing of physical injury in order to state a claim pursuant to 42

U.S.C. § 1983, and cases discussing § 1997e(e). Accordingly, the court finds that defendants are

moving to dismiss on grounds that plaintiff has failed to allege a physical injury as required by 42

U.S.C. § 1997e(e).

In Oliver v. Kelly, 289 F.3d 623, 627 (9th Cir. 2002), the Ninth Circuit held that

42 U.S.C. § 1997e(e) requires a prior showing of physical injury that need not be significant but

must be more than de minimis. In their motion, citing Hudson v. McMillan, 501 U.S. 1 (1992),

defendants appear to urge the court to adopt the approach taken by the Fifth Circuit in Siglar v.

Hightower, 112 F.3d 191 (5th Cir. 1997), which imported the standard used for Eighth

Amendment excessive force claims in examining whether a prisoner had demonstrated adequate

physical injury under § 1997e(e). In Oliver v. Kelly, the Ninth Circuit explicitly rejected this

approach. 289 F.3d at 628-929. Defendants also cite Luong v. Hatt, 979 F. Supp. 481 (N.D.Tex.

1997) in support of their argument that plaintiff has not pled adequate physical injury. In Oliver

v. Kelly, the Ninth Circuit also rejected the approach taken by the District Court in Luong in

evaluating physical injury under § 1997e(e). 289 F.3d at 628.

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The court now considers whether plaintiff’s claims against defendants Epperson

and Ratliff allege adequate physical injury. Plaintiff’s opposition does not address this argument.

In the complaint, plaintiff first alleges that defendants placed him in mechanical restraints and

held him in a holding cage for three hours during which time he wore only boxer shorts. Plaintiff

does not allege any injury as a result of this conduct. Accordingly, the motion to dismiss this

claim should be granted.

Plaintiff next alleges that defendants required him to walk 200 yards in cold

weather during which time he wore only boxer shorts. While plaintiff apparently felt cold during

this brief time, the court finds that any injury he suffered was de minimis. Accordingly, the

motion to dismiss this claim should be granted.

Plaintiff next alleges that defendants refused to retrieve his pain medication,

prescribed cotton blanket, orthotic inserts and tennis shoes. In the complaint, plaintiff alleges

that he did not receive these items until February 3, 2004. Complaint, ¶ 53. Therefore, plaintiff

was without these items for 15 days. Although plaintiff does not specifically describe the injury

he suffered, the court observes that these items were medically prescribed. The court cannot find

at this time that the injury suffered by plaintiff as a result of not having these items was de

minimis. Accordingly, the motion to dismiss these claims should be denied. 

IV. Conclusion

Based on the discussion above, the court finds that defendants should file an

answer addressing the following claims: 1) defendant Kissinger used excessive force on June 30,

2003; 2) on July 1, 2003, defendant DeForest confiscated plaintiff’s orthotics inserts and shoes;

defendant Lynn refused to help in retrieving these items; 3) defendant DeForest denied plaintiff’s

request for accommodations so that he could participate in Ramadhan; 4) on January 20, 2004,

defendants Ratliff and Epperson confiscated his pain medication, prescribed blanket, inserts and

shoes; and 5) August 25, 2003, defendants Kissinger, Hibbit and Jackson used excessive force.

\\\\\

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Accordingly, IT IS HEREBY RECOMMENDED that:

1. Defendants’ December 1, 2004, motion to dismiss for failure to exhaust

administrative remedies be denied as to the following claims: 1) defendant Kissinger used

excessive force on June 30, 2003; 2) on July 1, 2003, defendant DeForest confiscated plaintiff’s

orthotics inserts and shoes; defendant Lynn refused to help in retrieving these items; 3) defendant

DeForest denied plaintiff’s request for accommodations so that he could participate in

Ramadhan; 4) all claims against defendants Ratliff and Epperson regarding the events of January

20, 2004; defendants’ motion to dismiss for failure to exhaust administrative remedies be granted

in all other respects;

2. Defendants’ December 1, 2004, motion to dismiss for failure to allege a

physical injury pursuant to 42 U.S.C. § 1997e(e) be denied as to plaintiff’s claims that defendants

Ratliff and Epperson refused to retrieve his pain medication, prescribed cotton blanket, orthotic

inserts and tennis shoes; the motion to dismiss for failure to allege a physical injury should be

granted as to the remaining claims against defendants Ratliff and Epperson.

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: 4/26/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

wash1317.mtd

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