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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KERRY LUGENE PARKER,

Plaintiff, No. CIV S-04-2695 FCD GGH P

vs.

GEORGE STRATTON, et al.,

Defendants. FINDINGS & 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’ April 17, 2006, motion to dismiss for

failure to exhaust administrative remedies pursuant to Fed. R. Civ. P. 12(b). After carefully

reviewing the record, the court recommends that defendants’ motion be granted.

Discussion

Plaintiff originally filed this action on November 30, 2004, in the United States

District Court for the Northern District of California. On December 21, 2004, this case was

transferred to this court.

This action is proceeding on the amended complaint filed August 22, 2005, as to

defendants Warden Stratton and Islamic Chaplain Shawesh. 

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Plaintiff alleges that defendant Shawesh 1) denied his request to establish a class

to address the differences between Sunni and Shia Muslims; 2) denied his request to permit Shia

Muslims to congregate for worship and study; 3) failed to respond to inmate requests for dietary

chronos; 4) refused to place Shia religious artifacts on the religious package list; 5) removed

plaintiff from sermons based on plaintiff’s support of U.S. troops in Iraq; 6) engaged in rhetoric

which caused Sunnis to threaten Shias. 

Plaintiff alleges that defendant Stratton failed to adequately investigate plaintiff’s

administrative appeal regarding defendant Shawesh. 

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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3

On September 22, 2004, plaintiff submitted an administrative appeal complaining

that defendant Shawesh 1) denied his request to establish a Shia class; 2) denied his request for a

special diet; 3) engaged rhetoric which caused Sunnis to threaten Shias. Defendants’ Exhibit A,

pp. 4, 8. On September 24, 2004, this appeal was returned to plaintiff because he had not

attempted to resolve the problem at the informal level. Id., p. 10. Plaintiff resubmitted the

appeal on October 7, 2004, and it was partially granted at the informal level of review on October

8, 2004. Id., p. 4. On October 25, 2004, plaintiff appealed to the first level of review. Id., p. 4. 

On December 17, 2004, this appeal was denied. Id., p. 1. On December 30, 2004, plaintiff

submitted his appeal to the second formal level of review. Id., p. 5. On January 14, 2005, this

appeal was partially granted. Id., p. 2. Plaintiff did not file an administrative appeal at the third

formal level of review. 

In his opposition, plaintiff argues that he was not required to file a third level

appeal because he did not receive the response to his second level appeal until five months after

it was partially granted on January 14, 2005. Plaintiff’s receipt of the response was apparently

delayed because he had moved. Plaintiff had fifteen working days from January 14, 2005, to file

his third level appeal. Cal. Code Regs. tit. 15, § 3084.6(c). Plaintiff suggests that because

defendants did not provide him with a timely response to his second level appeal, he could not

file a third level grievance.

At the outset, the court observes that the parties do not dispute that the appeal

discussed above is the only appeal filed by plaintiff relevant to the claims raised in this action.

Plaintiff’s appeal concerned only plaintiff’s claims against defendant Shawesh. While plaintiff

alleges that defendant Stratton did not adequately investigate plaintiff’s administrative appeal

regarding defendant Shawesh, none of the administrative appeals was denied by defendant

Stratton. For this reason, the court cannot find that these appeals exhausted plaintiff’s claims

against defendant Stratton. Accordingly, because plaintiff’s appeals did not discuss plaintiff’s

claims against defendant Stratton, defendants’ motion to dismiss for failure to exhaust

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 Plaintiff’s informal level appeal was responded to within ten working days, as required 1

by the regulations. Cal. Code Regs. tit. 15, § 3084.6(b)(1). 

4

administrative remedies should be granted as to this defendant.

As discussed above, plaintiff originally filed this action on November 30, 2004. 

On October 25, 2004, plaintiff submitted his first level appeal. This appeal was stamped as

received by the Appeals Office on October 28, 2004. Defendants’ Exhibit A, p. 4. Prison

officials had thirty working days from the date the appeal was received by the appeals

coordinator on October 28, 2004, to respond to this appeal. Cal. Code Regs. tit. 15, § 3084.6(a)

and (b)(2). The December 17, 2004, response was not within thirty working days of October 28,

2004. However, at the time plaintiff filed this action, thirty working days had not passed from

October 28, 2004. Therefore, plaintiff filed this action prior to exhausting his administrative

remedies. In other words, plaintiff was required to wait until thirty working days had passed

from the time appeals office received his first level appeal before filing this action. On this

ground, the motion to dismiss the claims against defendant Shawesh should be granted.1

Defendants do not argue that plaintiff’s appeal did not raise all of the issues raised

in this action. Accordingly, the court will not address this issue sua sponte. In addition, because

plaintiff filed this action before thirty working days had passed from the time the appeals office

received his first level appeal, it need not reach the issue of whether plaintiff was required to file

a third level grievance if he did not receive the response to the second level grievance until five

months after it was issued.

Accordingly, IT IS HEREBY RECOMMENDED that defendants’ April 17, 2006,

motion to dismiss be granted.

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 

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“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: 9/11/06

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

par2695.mtd

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