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United States District Court

Eastern District of California 

Joel Whitney,

Plaintiff, No. Civ. S 04-2683 DFL PAN P

vs. Findings and Recommendations

Scott Kernan, et al.,

Defendants.

-oOoPlaintiff is a state prisoner without counsel prosecuting a

civil rights action against prison officials. 

The action proceeds on the December 21, 2004, complaint

against defendants Simonson, Baker and Mesa. Plaintiff claims he

notified these defendants he was in danger at the hands of his

cell-mate, who had attacked him, but they showed deliberate

indifference to his safety by doing nothing to protect him and,

as a result, plaintiff’s cell-mate raped him at razor-point

January 27, 2004. 

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Defendants moved July 15, 2005, to dismiss the complaint for

plaintiff’s failure to exhaust administrative remedies. Plaintiff

opposed August 29, 2005. 

Title 42 U.S.C. § 1997e(a) provides a prisoner may bring no

§ 1983 action until he has exhausted such administrative remedies

as are available. The requirement is mandatory. Booth v.

Churner, 532 U.S. 731, 741 (2001). The administrative remedy

must be exhausted before suit is brought and a prisoner is not

entitled to a stay of judicial proceedings in order to exhaust. 

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

need not plead exhaustion. Wyatt v. Terhune, 315 F.3d 1108 (9th

Cir. 2003). Ordinarily, defendants must raise and prove absence

of exhaustion as a defense raised by a motion to dismiss. Id.

“Courts considering ‘nonenumerated’ Rule 12(b) motions on the

issue of administrative exhaustion may not only rely on matters

outside the pleadings but also have broad discretion to resolve

any factual disputes.” Irvin v. Zamora, 161 F. Supp. 2d 1125,

1128 (S.D. Cal. 2001) (citing Ritza v. Internat’l Longshoremen’s

& Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1988)).

The California Department of Corrections’ administrative

grievance procedure is set forth in Title 15 of the California

Administrative Code at sections 3084.1, et seq. California

prisoners or parolees may appeal “any departmental decision,

action, condition, or policy which they can demonstrate as having

an adverse effect upon their welfare.” 15 CAC § 3084.1(a). The

prisoner must present his grievance on a Form 602 that requires

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he “describe the problem.” 15 CAC § 3084.2(a). Ordinarily the

prisoner must seek informally to resolve the grievance with the

prison staff involved but that is not required if the grievance

alleges misconduct by a departmental peace officer. 15 CAC §§

3084.2(b); 3084.5(a)(2)(G). If the grievance cannot be or is not

required to be informally resolved, an “appeals coordinator”

screens the grievance to determine whether it should be rejected

on a number of listed grounds. 15 CAC § 3084.3. One such ground

is “abuse of the appeal process.” § 3084.3(c)(8). “Abuse”

includes “an appellant’s refusal to be interviewed or cooperate

with the reviewer” and results in “cancellation of the appeal. §

3084.4(d). Another such ground is untimeliness, i.e., submitting

the grievance “within 15 working days of the event or decision

being appealed.” § 3084.6(c). There is no opportunity for review

of an appeals coordinator’s rejection of a grievance. This first

level of formal review may be “bypassed” if the grievance

involves a department or prison policy or procedure that staff

cannot change or “serious disciplinary infractions.” If the

grievance review by the appeals coordinator but is not resolved

at the first level of formal review, or that level is bypassed,

the prisoner may seek review by the prison warden and then by the

director of the department.

Plaintiff submitted a written grievance describing the

problem as follows:

On Tuesday, Jan. 27, 2004, at approx. 10:15 p.m my

cellie Brad Thompson T-26839 wrestled me onto his

bottom bunk. He held a razor blade to my throat and

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threatened my life saying “I don’t care if I kill you.” 

He then pulled down my boxers and raped (sodomized) me. 

Approx. one week prior to this incident Thompson had

hit me in the solar plexus, knocking the air out of me. 

I told the guards and they said if we can’t get along

get a cell move. I filled out and completed a cell

move slip with all necessary signatures on it (c/o’s

included) and turned it in. Three days later, I had

found someone to move in with. I have numerous

witnesses, all of whom agreed to testify on my behalf,

that I tried desperately to move, before this incident

took place. Mr. Thompson has a history of this kind of

conduct. Due to staff negligence, deliberate

indifference, and mali[ci]ous conduct by placing me in

this situation and then not assisting me when it became

apparent there was a problem, I am asking for damages

in an unspecified amount at this time... I turned in

the cell move slip to my building (6) officers.

Motion to Dismiss, Ex. 2 pp. 1, 4.

The grievance was forwarded directly to the warden who

“cancelled” it for plaintiff’s “lack of cooperation” because he

allegedly twice refused to appear to be interviewed and refused

to have an interview video recorded. Motion to Dismiss, Ex. 2 p.

5-6. 

Plaintiff sought review by the director, stating:

The appellant wishes to appeal to the director’s level

so as to exhaust his administrative remedies. 

Appellant takes issue with CCII T. Hansen’s statement

that appellant failed to cooperate. Appellant will

willingly submit to an interview. As proof of this

appellant met with and had an interview with an

investigator for the Amador County District Attorneys

Office. The only problem appellant had was being video

recorded. Appellant is under extreme stress, trauma

and humiliation over this terrible incident and is

being treated with mental health medication. And a

video tape session was more than appellant can endure

at this time. An interview in private would have been

sufficient. 

Id. p. 11.

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Plaintiff’s grievance was “returned” on the ground it had

been cancelled and advice that if plaintiff disagreed with the

decision cancelling his grievance he should seek and comply with

instructions from the Appeals Coordinator. Id. p. 10. 

Defendants argue this course of events amounts to a failure

to exhaust administrative remedies because plaintiff

“deliberately bypassed” the system. Defendants argue plaintiff

should have returned to the appeals coordinator as instructed by

the director. 

In Ngo v. Woodford, 403 F.3d 620 (9th Cir. 2005) the court

explained that the purpose of the administrative exhaustion rule

is to gave the department of corrections the first opportunity to

resolve the controversy outside of court and to develop a factual

record that might aid the court if it is later required to

intervene. Failure to exhaust bars a remedy only if one is still

available. Thus, even if a prisoner’s grievance is rejected at

the first level on the ground it was untimely, if the prisoner’s

description of the problem gave the department fair opportunity

to resolve it, the prisoner has exhausted available

administrative remedies. 

Ngo was released from administrative segregation in December

2000 and returned to the general prison population but restricted

from participating in special programs including evening

fellowship and Bible study sessions. He waited until June 2001

to grieve the restriction. The appeals coordinator rejected his

grievance on the ground it was not timely. Ngo argued his

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complaint was continuing but to no avail. Since no further

remedy was available to him, the court concluded he had exhausted

his administrative remedies.

This case is different. Plaintiff accused another prisoner

of a serious felony and charged correctional staff with a

violation of his well-established federal civil rights. It was

entirely reasonable of prison authorities to require plaintiff’s

cooperation by submitting to an interview of plaintiff and to

record his statements by videotape. Prison regulations provided

that if a prisoner withheld cooperation, his grievance would be

deemed canceled, viz. annulled or called off, and that simply

cannot be deemed exhaustion of his prison remedies. Title 15 CCR

§ 3084.4(d). Furthermore, the warden’s advice to return to the

appeals coordinator and follow his instructions ineluctably

implied administrative remedies did remain available to

plaintiff. 

Accordingly, the court hereby recommends defendants’ July

15, 2005, motion to dismiss be granted and this action be

dismissed for failure to exhaust administrative remedies.

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

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recommendations in whole or in part.

Dated: January 24, 2006. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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