Free Motion to Dismiss - District Court of California - California

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1 EDMUND G. BROWN JR. 2 Attorney General of the State of California DAVID S. CHANEY 3 Chief Assistant Attorney General ROCHELLE C. EAST 4 Acting Senior Assistant Attorney General MICHELLE DES JARDINS 5 Supervising Deputy Attorney General PHILLIP LINDSAY, State Bar No. 204444 6 Deputy Attorney General 110 West A Street, Suite 1100 San Diego, CA 92101 7 P.O. Box 85266 San Diego, CA 92186-5266 8 Telephone: (619) 645-3134 Fax: (619) 645-2581 9 Email: [email protected] 10 Attorneys for Defendant Darr 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 13 14 MATTHEW LOUIS JOHNSON, 15 16 v. 17 DARR, 18 19 20 21 22 23 24 25 26 27 28 Date: Defendant. Time: Courtroom: Judge: August 28, 2008 2:00 p.m. H The Honorable Louisa S. Porter Plaintiff, DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS COMPLAINT 08-CV-0080-DMS (POR)

Oral Argument Not Required

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1 2 3 INTRODUCTION 4 5 6 STANDARD ON MOTION 7 8 ARGUMENT 9 10 11 12 13 14 15 C. 16 17 18 19 20 21 22 23 24 25 26 27 28 C. B. A. II. D. B. I. A. B.

TABLE OF CONTENTS Page 2 3 3 3 5

Johnson's First Action Johnson's Current Action

THIS COURT SHOULD DISMISS PLAINTIFF'S COMPLAINT BECAUSE THE ISSUE OF WHETHER HE EXHAUSTED ADMINISTRATIVE REMEDIES IS SUBJECT TO COLLATERAL ESTOPPEL A. Standard for Collateral Estoppel

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The Current Action Involves the Identical Claim and Exhaustion Issue as the First Action. 6 Johnson had a Full and Fair Opportunity to Litigate the Exhaustion Issue in the First Action. 7 The Exhaustion Issue was Critical and Necessary to the First Decision. 8

THIS COURT SHOULD DISMISS PLAINTIFF'S COMPLAINT BECAUSE HE FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES AFTER THIS COURT DISMISSED THE FIRST ACTION

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The Prison Litigation Reform Act of 1995 Requires All Prisoners to Exhaust the State's Administrative Remedies Before Filing Suit. 9 California Law Requires Inmates to Submit a Written Grievance Through Four Levels of Review to Exhaust their Administrative Remedies. 10 This Court Should Dismiss the Complaint Because Johnson Failed to Exhaust his Administrative Remedies After his First Action was Dismissed.

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TABLE OF CONTENTS (continued) 1 2 3 4 A. 5 6 7 8 9 CONCLUSION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Page III. THIS COURT SHOULD DISMISS PLAINTIFF'S COMPLAINT AS FRIVOLOUS BECAUSE IT LACKS AN ARGUABLE BASIS IN LAW This Court Should Dismiss the Complaint Because it has No Arguable Basis in Law. This Court Should Dismiss the Complaint as a "Strike" to Deter the Re-Filing of Identical Suits. 14 15

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1 2 3 Cases 4 5

TABLE OF AUTHORITIES Page

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6 Astoria Federal Sav. and Loan Ass'n v. Solimino 7 501 U.S. 104 (1991) 8 Bailey v. Johnson 846 F.2d 1019 (5th Cir.1988) 9 10 Barry v. Ratelle 985 F. Supp. 1235 (S.D. Cal. 1997) 11 12 Blonder-Tongue Laboratories v. University of Illinois Foundation et al. 402 U.S. 313 (1971) 13 14 Booth v. Churner 532 U.S. 731 (2001) 15 16 Clark v. Bear Stearns & Co. 966 F.2d 1318 (9th Cir. 1992) 17 Clark v. Bear Stearns & Co. 18 966 F.2d 1318 (9th Cir. 1992) 19 Clark v. Mason 20 No. C04-1647C, 2005 WL 1189577, at *4 (W.D. Wash. May 19, 2005) 21 Cruz v. Beto 22 405 U.S. 319 (1972) 23 Davis v. Bacon 24 234 Fed.Appx. 872 (10th Cir. 2007) 25 Dodd v. Hood River County 26 136 F.3d 1219 (9th Cir. 1998) 27 Eisel v. Columbia Packing Co. 28 181 F.Supp. 298 (Mass. 1960)

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TABLE OF AUTHORITIES (continued) 1 2 Goland v. United States 903 F.2d 1247 (9th Cir. 1990) 3 4 Jones v. Bock 127 S. Ct. 910 (2007) 5 6 Jones v. Bock 127 S. Ct. 910 (2007) 7 8 Montana v. U.S. 440 U.S. 147 (1979) 9 Neitzke v. Williams 10 490 U.S. 319 (1989) 11 Parklane Hosiery Co., Inc. v. Shore 12 439 U.S. 322 (1979) 13 Porter v. Nussle 14 534 U.S. 516 (2002) 15 16 17 Taylor v. Delatoore 18 281 F.3d 844 (9th Cir. 2002) 19 Town of N. Bonneville v. Callaway 20 10 F.3d 1505 (9th Cir. 1993) 21 United States v. Ritchie 342 F.3d 903 (9th Cir. 2003) 22 23 Vaden v. Summerhill 449 F.3d 1047 (9th Cir. 2006) 24 25 13 26 27 Woodford v. Ngo 548 U.S. 81 (2006) 28 9, 10 13 9 5, 6 Page 12

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TABLE OF AUTHORITIES (continued) 1 2 Wyatt v. Terhune 315 F.3d 1108 (9th Cir. 2003) 3 4 Constitutional Provisions 5 Fourth Amendment 6 Fifth Amendment 7 Eighth Amendment Ninth Amendment 8 Fourteenth Amendment 9 10 Statutes 3 3 3, 7, 8, 11 3 3 Page 3, 10

11 United States Code Title 28 12 § 1915 13 § 1915(e)(2)(b) § 1915(g) 14 15 16 17 18 19 20 21 Federal Rule of Civil Procedure Rule 11 Rule 12(b) 23 Rule 12(b)(6) 24 Rule 56 22 25 Federal Rules of Evidence Rule 201 26 Rule 803(7) 27 28 California Code of Regulations Title 15 §§ 3084.1-3084.7 § 3084.1(a) § 3084.5 § 3084.5(a)(3) § 3084.5(b)(1)-(4) § 3084.6(c)

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TABLE OF AUTHORITIES (continued) 1 2 Other Authorities 3 Prison Litigation Reform Act §1915(g) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 EDMUND G. BROWN JR. 2 Attorney General of the State of California DAVID S. CHANEY 3 Chief Assistant Attorney General ROCHELLE C. EAST 4 Acting Senior Assistant Attorney General MICHELLE DES JARDINS 5 Supervising Deputy Attorney General PHILLIP LINDSAY, State Bar No. 204444 6 Deputy Attorney General 110 West A Street, Suite 1100 San Diego, CA 92101 7 P.O. Box 85266 San Diego, CA 92186-5266 8 Telephone: (619) 645-3134 Fax: (619) 645-2581 9 Email: [email protected] 10 Attorneys for Defendant Darr 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 13 14 MATTHEW LOUIS JOHNSON, 15 16 v. 17 DARR, 18 19 20 21 22 Date: Defendant. Time: Courtroom: Judge: August 28, 2008 2:00 p.m. H The Honorable Louisa S. Porter Plaintiff, DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS COMPLAINT 08-CV-0080-DMS (POR)

Oral Argument Not Required This is Plaintiff's second action against the same Defendant based on the same incident.

23 This Court dismissed Plaintiff's first action for failure to exhaust available administrative 24 remedies before filing suit. Likewise, this Court should dismiss this identical action because 25 Plaintiff failed to cure the deficiency after his first action was dismissed without prejudice. This 26 Court should also dismiss Plaintiff's complaint as frivolous because it is baseless and, therefore, 27 its dismissal should count as a "strike" under Section 1915(g) of the Prison Litigation Reform 28 Act (PLRA).

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INTRODUCTION Plaintiff Matthew Johnson is a California prison inmate currently incarcerated at the

3 Correctional Training Facility (CTF) in Soledad, California. Johnson complains about an 4 incident that took place while he was housed at Centinela State Prison (CEN) in Imperial, 5 California. While at CEN, Johnson alleges that Defendant Darr, a Correctional Officer at CEN, 6 intentionally placed him at risk of attack by other inmates, and that inmates did, in fact, attack 7 him, causing him injury. 8 On July 17, 2005, while Johnson was incarcerated at CEN, a race riot took place between

9 African-American and Hispanic inmates in facility D. (Plaintiff's Complaint (Compl.) 3.) 10 Defendant Darr called Johnson and three other inmates to the program office. (Id.) Plaintiff and 11 all three inmates were "Mac Reps" of facility D.1/ (Id. at 3.) Defendant Darr informed all four 12 inmates that each inmate would be going from building to building to talk with the inmates in an 13 attempt to resolve the racial tension that had developed. (Id. at 3, C-3.) The inmates were 14 divided into groups, and Plaintiff was assigned to the group escorted by Defendant Darr. (Id. at 15 C-3.) 16 When Johnson and Defendant Darr arrived at building 1, all inmates were locked in their

17 cells. (Id.) Johnson then proceeded to go from cell to cell, speaking with inmates. (Id.) When 18 Johnson reached the last cell on the upper tier, he alleges that Defendant Darr ordered the control 19 tower officer to open four cells containing eight Hispanic inmates, at which time they exited 20 their cells and attacked Plaintiff. (Id. at C-3-4.) As a result of the attack, Johnson alleges that he 21 required stitches in his lip and head. (Id. at C-4.) After receiving medical treatment, Johnson 22 alleges that Defendant Darr ordered Johnson to Administrative Segregation (Ad-Seg), where 23 Plaintiff was informed that he would remain pending transfer to another institution. (Id.) 24 /// 25 1. Defendant believes that the term "Mac Reps" refers to representatives of the Men's Advisory Counsel. A Men's Advisory Counsel is a "body of inmates selected by the general 27 population of inmates to act in an advisory capacity to the Warden, and his or her administrative staff, in matters of common interest and concern to the general inmate population and 28 administration." Cal. Dep't of Corrections Operations Manual, § 53120.1. 26
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1 A. 2

Johnson's First Action Johnson filed his first action regarding the July 2005 incident against Defendant Darr on

3 June 14, 2006, under case number 06-CV-01257-JAH (POR). He alleged that Darr violated his 4 constitutional rights under the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments. 5 Johnson also alleged Darr's actions violated state law. On December 13, 2007, this Court 6 dismissed Johnson's Fourth, Fifth and Ninth Amendment claims pursuant to Federal Rule of 7 Civil Procedure 12(b)(6) for failure to state a claim. His Eighth Amendment claim was 8 dismissed on the ground that he failed to exhaust administrative remedies before filing his 9 lawsuit. With all of Johnson's federal claims dismissed, the Court declined to exercise 10 supplemental jurisdiction over his state law claims. 11 B. 12 Johnson's Current Action On January 14, 2008, Johnson filed the current action alleging an identical Eighth

13 Amendment claim against Darr, seeking compensatory damages in the amount of $500,000, 14 punitive damages in the sum of $1,500,000, and immediate release from custody. (Compl. at 7.) 15 Defendant moves to dismiss Johnson's Complaint under Rule 12(b) (unenumerated) on

16 the ground that he failed to exhaust his administrative remedies after his first action was 17 dismissed without prejudice. Moreover, Johnson is collaterally estopped from relitigating his 18 failure to exhaust the prison's administrative remedies before filing his first suit. Finally, 19 Defendant moves this Court to dismiss Johnson's second identical lawsuit as frivolous, because 20 it lacks an arguable basis in law. 21 22 STANDARD ON MOTION "In deciding a motion to dismiss for failure to exhaust nonjudicial remedies, the court

23 may look beyond the pleadings and decide disputed issues of fact." Wyatt v. Terhune, 315 F.3d 24 1108, 1119-1120 (9th Cir. 2003). Matters subject to judicial notice under Federal Rule of 25 Evidence 201 may be considered in deciding Rule 12(b) motions, and official records and reports 26 may be so noticed and considered without converting a Rule 12(b)(6) motion into a Rule 56 27 motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). 28 Federal Rule of Evidence 803(7) is also relevant: the absence of business records may "prove
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1 the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a 2 memorandum, report, record, or data compilation was regularly made and preserved, unless the 3 sources of information or other circumstances indicate a lack of trustworthiness." 4 A party will be collaterally estopped from relitigation of an issue when the issue is

5 identical to one previously litigated by that party. The court must find that the issue was actually 6 litigated, and that determination of the issue was critical and necessary to the judgment in the 7 earlier action. Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir. 1992). If an issue is 8 essential to the success of the plaintiff's case, but the plaintiff is collaterally estopped from 9 relitigating it, the complaint must be dismissed. Id. 10 Further, 28 U.S.C. § 1915 allows federal courts to dismiss in forma pauperis actions,

11 either sua sponte or on motion of the Defendant, if satisfied they are frivolous. Dismissal of a 12 claim as frivolous allows it to be considered a "strike" under Section 1915(g) of the PLRA. 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///
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ARGUMENT I. THIS COURT SHOULD DISMISS PLAINTIFF'S COMPLAINT BECAUSE THE ISSUE OF WHETHER HE EXHAUSTED ADMINISTRATIVE REMEDIES IS SUBJECT TO COLLATERAL ESTOPPEL The Court dismissed Johnson's first action on December 13, 2007, for failure to exhaust

6 administrative remedies. (Johnson v. Darr, case no. 06-CV-01257-JAH (POR), (Doc. No. 20), 7 see Def.'s Req. for Judicial Not., Ex. B.) Because the issue of whether Johnson exhausted 8 administrative remedies has previously been decided by this court, Johnson is foreclosed from 9 re-litigating it in a subsequent suit. Moreover, the evidence shows that he has still not exhausted 10 his administrative remedies after this Court dismissed his first action without prejudice. Because 11 Johnson is collaterally estopped from re-litigating this court's prior finding, the complaint should 12 be dismissed. 13 A. 14 Standard for Collateral Estoppel "Collateral estoppel bars the relitigation of issues actually adjudicated in previous

15 litigation between the same parties." Clark v. Bear Stearns & Co., 966 F.2d at 1320. The 16 doctrine "has the dual purpose of protecting litigants from the burden of relitigating an identical 17 issue with the same party. . .and of promoting judicial economy by preventing needless 18 litigation." Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979). Collateral estoppel 19 also prevents inconsistent results by foreclosing issues critical to the outcome of a case from 20 relitigation. Montana v. U.S., 440 U.S. 147, 153-154 (1979). Collateral estoppel applies when: 21 22 23 24 Town of N. Bonneville v. Callaway, 10 F.3d 1505, 1508 (9th Cir. 1993). For an issue to be 25 "actually litigated," the party against whom preclusion is asserted must have had a "full and fair" 26 opportunity to litigate the issue. Parklane Hosiery Co., Inc., 439 U.S. at 325. 27 /// 28
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(1) the issue at stake [is] identical to the one alleged in the prior litigation; (2) the issue [has] been actually litigated [by the party against whom preclusion is asserted]; and (3) the determination of the issue in the prior litigation [was] a critical and necessary part of the judgment in the earlier action.

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1 B. 2 3

The Current Action Involves the Identical Claim and Exhaustion Issue as the First Action. "A losing litigant deserves no rematch after a defeat fairly suffered. . .on an issue

4 identical in substance to the one he subsequently seeks to raise." Astoria Federal Sav. and Loan 5 Ass'n v. Solimino, 501 U.S. 104, 107 (1991). An "identical" issue raised in a second suit relates 6 to the same transaction and involves the same parties, witnesses and evidence. Clark, 966 F.2d 7 at 1320; see also Parklane Hosiery, Co., Inc., 439 U.S at 324-25. 8 The current action, and the associated issue of whether Johnson has exhausted his

9 administrative remedies, is virtually identical to the first. In his first action, Johnson alleged that 10 on July 21, 2005, while he was serving in his capacity as a "Mac Rep," Defendant Darr, 11 accompanied by two other officers, "order[ed] the D1 Tower officer to open [Hispanic] cells," 12 causing eight Hispanic inmates, incited by racial tension, to rush out and attack him. (First 13 Compl., at 3, 5.)2/ Similarly, Johnson claims in his current action that on July 21, 2005, "Captain 14 Darr ordered the control tower to go ahead and start the Hispanics [sic] showers," at which point 15 eight Hispanics exited their cells and "attacked [Johnson] from behind," knocking him 16 unconscious. (Current Compl. at C-3-4.) In short, Johnson again claims that Darr ordered 17 Hispanic inmates to be released with the knowledge that they would assault Johnson in the 18 aftermath of a race riot. (Id. at C-7; First Compl. at 5-6.) Johnson states in his current complaint 19 that only he, the Hispanic inmates, Darr, two correctional officers, and one control tower officer 20 were present during the incident, all of whom were also identified in his first complaint. (First 21 Compl. at 3, Current Compl. at C-3-4.) 22 No additional plaintiffs, defendants or witnesses were named in the current action. Like

23 the first action, Johnson filed the current action solely against Captain Darr, in which he 24 describes the incident of July 21, 2005 exactly as it was detailed in his first action. The current 25 /// 26 2. "First Complaint" refers to Johnson's previous complaint, filed on June 14, 2006, in case number 06-CV-01257-JAH (POR). "Current Complaint" refers to Johnson's current complaint, filed 28 January 14, 2008 in case number 08-CV-0080-DMS (POR). 27
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1 action involves the same parties, witnesses and evidence as Johnson's first action. Thus, his two 2 Eighth Amendment claims are virtually identical. 3 On the issue of exhaustion, Johnson argued in his first action that he attempted to submit

4 his appeal for a third-level review before filing his lawsuit, but that his appeal was rejected. 5 (First Compl. 6.) Defendant Darr proved that Johnson's appeal was appropriately rejected and 6 returned because he failed to attach his second-level response when he submitted it for a third7 level review. Johnson then refused to correct and resubmit his appeal, and instead filed suit. 8 Based on those findings, this Court dismissed Johnson's first action for failure to exhaust 9 administrative remedies. 10 In his current action, Johnson again alleges that "the final level [of review] refuse[d] to

11 address" his complaint, and that he waited several months for a response before filing his first 12 lawsuit. (Current Compl., 6.) His current action includes no further allegations related to 13 exhaustion of administrative remedies that might distinguish it from the first, which was duly 14 considered and rejected by this Court. Therefore, both Johnson's Eighth Amendment claim and 15 the associated issue of whether he exhausted are identical in substance to his first action. See 16 Clark v. Mason, No. C04-1647C, 2005 WL 1189577, at *4 (W.D. Wash. May 19, 2005) 17 (subsequent complaint alleging exhaustion of administrative remedies found to be identical to 18 previously dismissed complaint, and therefore barred by collateral estoppel). 19 C. 20 21 Collateral estoppel will bar a subsequent action if the party against whom it is being Johnson had a Full and Fair Opportunity to Litigate the Exhaustion Issue in the First Action.

22 asserted had "`a fair opportunity procedurally, substantively and evidentially to pursue his claim 23 the first time.'" Blonder-Tongue Laboratories v. University of Illinois Foundation et al., 402 24 U.S. 313, 333 (1971) (quoting Eisel v. Columbia Packing Co., 181 F.Supp. 298, 301 (Mass. 25 1960)). An issue has been fully litigated where "the parties had both a full opportunity and the 26 incentive to contest the point at issue." Dodd v. Hood River County, 136 F.3d 1219, 1224 (9th 27 Cir. 1998). 28 ///
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Johnson had a full and fair opportunity to litigate the issue of whether he exhausted

2 administrative remedies in his first lawsuit. On December 4, 2006, Defendant Darr moved to 3 dismiss Johnson's first action on the grounds that Johnson failed to exhaust administrative 4 remedies. Johnson filed an opposition on January 4, 2007, alleging that he attempted to pursue 5 his appeal through the third level of review but that it had been rejected. He made no mention of 6 the third level's instructions to attach his second-level response and resubmit his appeal if 7 unsatisfied with their decision. On August 10, 2007, this Court rejected Johnson's opposition 8 and issued a Report and Recommendation (R&R) to grant Defendant's motion, finding that "the 9 evidence offered by Defendant supports a finding that Plaintiff did not correct the deficiency and 10 re-submit [his] appeal for consideration at the Third Level of Review." (R&R at 10:17-19, see 11 Def.'s Req. for Judicial Not., Ex. B.) 12 Johnson was then given the opportunity to object to the R&R. He filed an objection on

13 August 27, 2007, where he presented no additional evidence and made "only general objections 14 to the magistrate judge's report." (Order Adopting R&R at 4, see Def.'s Req. for Judicial Not., 15 Ex. C) His objections were subsequently overruled by this Court, and the R&R was adopted in 16 full, resulting in the dismissal of Johnson's first Eighth Amendment action without prejudice. 17 Johnson had two opportunities to present evidence to rebut Defendant's contention that

18 he failed to exhaust. He availed himself of both, and in each case, his contentions were rejected. 19 Further, Johnson had the ultimate incentive to prove that he had exhausted, knowing that his 20 claim would be dismissed without this required showing. 21 D. 22 The Exhaustion Issue was Critical and Necessary to the First Decision. This Court explicitly dismissed Plaintiff's previous lawsuit on the basis that he failed to

23 exhaust administrative remedies before filing suit. (R&R at 11:2-6, see Def.'s Req. for Judicial 24 Not., Ex. B.) The judgment of dismissal was based solely on Johnson's failure to exhaust his 25 administrative remedies. No other grounds for dismissal were cited by the court. Accordingly, 26 the issue of failure to exhaust was "critical and necessary" to that decision. See Clark, No. C0427 1647C, 2005 WL 1189577, at *4 (determination of failure to exhaust found to be critical and 28 necessary where previous claim was dismissed on that basis). As a result, Johnson is collaterally
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1 estopped from religitating this Court's previous finding that he failed to fully exhaust 2 administrative remedies before filing his first action. The issue then, is whether or not Johnson 3 cured the defect by fully exhausting the prison's administrative remedies before filing his current 4 action. If not, like the first action, the current action is subject to dismissal for failure to exhaust. 5 6 7 8 9 II. THIS COURT SHOULD DISMISS PLAINTIFF'S COMPLAINT BECAUSE HE FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES AFTER THIS COURT DISMISSED THE FIRST ACTION This Court previously found that Plaintiff had administratively appealed the incident

10 complained of through the second level, but that he did not completely exhaust his 11 administrative remedies through the third (Director's) and final level. The Court, therefore, 12 dismissed the complaint without prejudice. In his current action, however, the evidence shows 13 that Johnson did not exhaust his administrative remedies after his first action was dismissed. 14 15 A. 16 17 The PLRA requires all prisoners to exhaust a state's administrative remedies before filing ust be dismissed for failure to exhaust. The Prison Litigation Reform Act of 1995 Requires All Prisoners to Exhaust the State's Administrative Remedies Before Filing Suit.

18 suit. "There is no question that exhaustion is mandatory under the PLRA and that unexhausted 19 claims cannot be brought in court." Jones v. Bock, 127 S. Ct. 910, 918-19 (2007) (citing Porter 20 v. Nussle, 534 U.S. 516, 524 (2002)); see also Booth v. Churner, 532 U.S. 731, 739 (2001). As 21 the Supreme Court explained in Booth, when Congress amended section 1997e(a) in 1995, "the 22 amendments eliminated . . . the discretion to dispense with administrative exhaustion." Booth, 23 532 U.S. at 739. The Court also "stress[ed] the point . . . that [it] will not read futility or other 24 exceptions into statutory exhaustion requirements where Congress has provided otherwise." Id. 25 at 741 n.6. "There is no question that exhaustion is mandatory under the PLRA and that 26 unexhausted claims cannot be brought in court." Jones, 127 S. Ct. at 919. 27 The Supreme Court has held that a prisoner must properly exhaust all available

28 administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). Proper exhaustion
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1 requires the prisoner to follow each step of the administrative process. Id.; Jones, 127 S. Ct. at 2 922-23 ("...it is the prison's requirements, not the PLRA, that define the boundaries of proper 3 exhaustion.") The Court reasoned that any other interpretation of the PLRA would render the 4 exhaustion requirement "toothless," Woodford, 548 U.S. at 95, and would allow the prisoner to 5 circumvent the exhaustion requirement's two main goals: giving the agency an opportunity to 6 correct its own mistakes before being haled into federal court, and resolving claims 7 administratively or, at a minimum, producing a useful record for judicial review. Id. at 89. 8 Failure to exhaust administrative remedies before filing suit requires the Court to dismiss the 9 Complaint without prejudice and without leave to amend. Vaden v. Summerhill, 449 F.3d 1047, 10 1051 (9th Cir. 2006); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). 11 B. 12 13 The administrative appeal system for California inmates is described in Title 15 of the California Law Requires Inmates to Submit a Written Grievance Through Four Levels of Review to Exhaust their Administrative Remedies.

14 California Code of Regulations. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Inmates may 15 "appeal any departmental decision, action, condition, or policy which they can demonstrate as 16 having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). An inmate 17 wishing to exhaust his or her remedies must complete four steps: (1) prepare a CDC form 602 18 within 15 days of the event complained of, present it to the involved prison official, and attempt 19 informal resolution; (2) if dissatisfied, the inmate must file for and receive a first-formal-level 20 decision; (3) if still dissatisfied, the inmate must file for and receive a second-formal-level 21 decision; and, (4) finally, to fully exhaust, the inmate must file for and receive a third-formal22 level decision from the Director of Corrections. Cal. Code Regs. tit. 15, §§ 3084.5, 3084.6(c); 23 Woodford, 581 U.S. at 85-86. 24 In certain circumstances, the informal and first-formal level of review may be bypassed.

25 Id. at §§ 3084.5(a)(3), 3084.5(b)(1)-(4). For all grievances, however, the administrative process 26 is completed, or exhausted, only after the inmate receives a decision from the Director of 27 Corrections. Woodford, 581 U.S. at 86; Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D. Cal. 28 1997).
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1 C. 2 3

This Court Should Dismiss the Complaint Because Johnson Failed to Exhaust his Administrative Remedies After his First Action was Dismissed. Plaintiff failed to completely exhaust his administrative remedies. Therefore, on

4 December 13, 2007, this Court dismissed Plaintiff's first action without prejudice. Plaintiff has 5 now filed a second Eighth Amendment action. Because Johnson is collaterally estopped from 6 relitigating the issue of whether he exhausted available administrative remedies before filing his 7 first action, unless Johnson cured the defect and exhausted his administrative remedies by the 8 time he filed his current action, this action is likewise barred by the PLRA. In other words, the 9 Complaint is subject to dismissal unless Johnson received a third-level review of his appeal 10 before filing his Complaint on January 14, 2008. 11 Johnson did not exhaust his administrative remedies because Johnson has not received a

12 third-level review regarding the July 2005 incident. The evidence continues to show that no 13 appeal has been received at the third level regarding the basis of his Complaint. (Emigh Decl. at 14 ¶¶ 9, 10.) Because Johnson once again failed to properly exhaust his administrative remedies 15 through the third level, the Complaint is barred by the PLRA and should be dismissed. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///
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III. THIS COURT SHOULD DISMISS PLAINTIFF'S COMPLAINT AS FRIVOLOUS BECAUSE IT LACKS AN ARGUABLE BASIS IN LAW Section 1915(g) of the PLRA denies prisoners in forma pauperis status to file lawsuits

5 when they have previously had three or more actions dismissed as "strikes." 28 U.S.C. § 6 1915(g). A "strike" is any lawsuit filed by a prisoner that is dismissed as frivolous or malicious, 7 fails to state a claim, or that is directed at a defendant who is immune from suit. 28 U.S.C. § 8 1915(e)(2)(b). The drafters of the "three strikes" provision hoped to reduce the large number of 9 frivolous inmate lawsuits clogging the federal courts and draining limited judicial resources. 10 Taylor v. Delatoore, 281 F.3d 844, 849 (9th Cir. 2002). Congress was concerned that prisoners 11 lacked the usual incentives to refrain from filing frivolous suits and indeed would be motivated 12 to do so even if only to take a "short sabbatical in the nearest federal courthouse." Cruz v. Beto, 13 405 U.S. 319, 327 (1972). To combat this problem, the PLRA aimed to discourage the filing of 14 frivolous lawsuits "that paying litigants generally do not initiate because of the costs of bringing 15 suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of 16 Civil Procedure 11." Neitzke v. Williams, 490 U.S. 319, 327 (1989). By threatening prisoners 17 with the loss of the right to file suit in forma pauperis, Congress hoped to create a powerful 18 deterrent to the filing of frivolous actions. 19 Section 1915 provides no definition for the term "frivolous," instead granting Federal

20 Courts the discretion to dismiss an in forma pauperis complaint "if satisfied that the action is 21 frivolous." 28 U.S.C. § 1915(g). In Andrews v. King, however, the Ninth Circuit provided 22 guidance, noting that "a case is frivolous if it is `of little wei 23 quoting Webster's Third

24 New International Dictionary 913 (1993) and citing Goland v. United States, 903 F.2d 1247, 25 1258 (9th Cir. 1990)); see also Neitzke, 490 U.S. at 325 (a complaint is "frivolous where it lacks 26 an arguable basis either in law or in fact") (emphasis added). Johnson's complaint should be 27 dismissed as frivolous for the purposes of the "three strikes" provision of the PLRA because it 28 lacks an arguable basis in law.
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1 A. 2 3

This Court Should Dismiss the Complaint Because it has No Arguable Basis in Law. A complaint lacks an arguable basis in law when the plaintiff pleads no set of facts that

4 "would entitle him or her to relief" under any 5 6 7 8 second action frivolous). Other courts have also held that an

9 in forma pauperis complaint that merely repeats pending or previously litigated claims may be 10 dismissed as frivolous. See, e.g., Neitzke, 490 U.S. at 324 (stating that section 1915 "is aimed at 11 the dismissal of ``frivolous, malicious, or repetitive lawsuits.") (emphasis added); Bailey v. 12 Johnson, 846 F.2d 1019, 1021 (5th Cir.1988) (appeal dismissed as frivolous "because it involved 13 a duplicative action arising from the same series of events and alleging many of the same facts as 14 an earlier suit."); Davis v. Bacon, 234 Fed. Appx. 872, 873 (10th Cir. 2007) (complaint 15 dismissed as frivolous because it "substantially mirror[ed]" a previous complaint dismissed for 16 failure to state a claim). 17 Johnson is collaterally estopped from raising the issue of exhaustion in his current action

18 as outlined above. Through his first action, Johnson was aware that his Complaint against 19 Defendant Darr was barred by the PLRA because of his failure to exhaust administrative 20 remedies. When his first action was denied without prejudice, Johnson knew that he could re21 file his action only if his appeal was reviewed at the third level, completing the administrative 22 process. Although he failed to exhaust his administrative remedies after his first action was 23 dismissed, he nevertheless filed an identical second action. No set of facts would entitle Johnson 24 to relief because he cannot relitigate the issue of whether he exhausted administrative remedies 25 before filing his first action, and the evidence shows that he failed to receive a third-level review 26 of his appeal before filing his current action. Therefore, the current action lacks an arguable 27 basis in law. As such, this Court should dismiss it as frivolous. 28
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1 2 B. 3 4 Allowing inmates to re-file identical lawsuits with no associated threat that they will This Court Should Dismiss the Complaint as a "Strike" to Deter the ReFiling of Identical Suits.

5 count as "strikes" upon dismissal would frustrate the purposes of the PLRA. Without the threat 6 of losing in forma pauperis status, inmates could continue to file identical lawsuits when 7 unhappy with a court's initial decision in the hopes of reaching a different outcome. As a result, 8 courts would be forced to waste valuable time and resources reconsidering previously litigated 9 claims. Further, dismissing Johnson's identical second suit as frivolous conforms with 10 Congress' goal of "assur[ing] equality of consideration for all litigants," because his claims were 11 already considered and rejected in his first action. Neitzke, 490 U.S. at 329. To prevent further 12 clogging of the courts and draining of judicial resources, the PLRA demands that Johnson's 13 second identical action be dismissed as frivolous and count as a "strike" under section 1915(g) 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 28
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CONCLUSION Johnson's claim should be dismissed because he failed -- a second time -- to exhaust his

3 administrative remedies before filing his suit. Moreover, Johnson is collaterally estopped from 4 relitigating the issue as to whether he exhausted his administrative remedies before filing his first 5 action. Because he failed to cure the defect of his first action, his current action is likewise 6 barred by the PLRA. Finally, Johnson knew that his claim was barred unless he obtained a third7 level review of his appeal. He failed to obtain such a review, yet he filed this identical action 8 anyway. The Complaint, therefore, is frivolous and its dismissal should count as a "strike" under 9 the PLRA. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Dated: July 16, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DAVID S. CHANEY Chief Assistant Attorney General ROCHELLE C. EAST Acting Senior Assistant Attorney General MICHELLE DES JARDINS Supervising Deputy Attorney General /s/Phillip Lindsay PHILLIP LINDSAY Deputy Attorney General Attorneys for Defendants R. Darr

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